GIFT  OF 


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WILLIAM  EDWARD  COLBY 

ATTORNEY  AT  LAW 

MILLS    BUILDING,  SAN    FRANCISCO 


June  6,  1918. 


MR.  J,  C.  ROWELL, 

Librarian,  University  of  California. 

Berkele:/,  California. 

Dear  Mr.  Rowell: 

As  per  your  recent  request  I  am 

furnishing  you  herewith  a  bound,  copy  of  my  articles 
entitled  "The  Extralateral  Right11  .   You  will  note 
that  this  is  a  reprint  of  a  series  of  articles 
published  in  the  California  Law  Review. 


Very  truly  yours, 


The  Extralateral  Right 

Shall  It  Be  Abolished? 


WM.  E.  COLBY 


(Reprint  of  a  Series  of  Articles  published  in  the 
California  Law  Review,  1916-1917.) 


377447 


CONTENTS 

I.     COMPARATIVE  TREATMENT.    Vol.  IV,  No.  5,  pp.  361-388 

Germany    and    Austria pp.  363-370 

France    pp.  3 70-374 

England    pp.  374-379 

Spain  and  Spanish  America pp.  379-384 

Italy    p.  384 

Belgium    p.  384 

Australia pp.  384-386 

Rhodesia    p.  386 

Canada  pp.  386-387 

Central  and   South  America pp.  387-388 

II.     HISTORICAL  TREATMENT.     Vol  IV,  No.  6,  pp.  437-452. 

The  Origin  and  Development  of  the  Extra- 
lateral  Right  in  the  United  States pp.  437-452 

The  Federal  Mining  Act  of  1866 pp.  452-464 

III.  HISTORICAL  TREATMENT  (Continued).  Vol.  V.  No.  i. 

The  Federal  Mining  Act  of  1872 pp.    18-  36 

IV.  CONCLUSION.     Vol.  V,  No.  4,  pp.  303-330. 

Growth  of  Opposition pp.  303-308 

The  Extralateral  Right  Principle  is  Ideal 

in  Theory  pp.  308-309 

The  Main  Reason  for  Eliminating  the 

Extralateral  Right  pp.  309-312 

Practical  Difficulties  of  Revision pp.  312-319 

A  Suggested  Remedy pp.  319-321 

Most  Countries  Recognize  Severance  of 

Minerals  from  Surface pp.  321-323 

Law  of  Apex  Based  on  Principle  of 

Severance  pp.  323-324 

The  Only  Logical  Alternative  is  to  Sever 

Minerals  from  Surface pp.  324-330 


:--'"-="" :- ••*'"*•*•  /f// 
California  Law  Review 

Volume  IV.  JULY,  1916  Number  5 

The  Extralateral  Right:    Shall  It 
Be  Abolished?* 

THERE  is  no  feature  of  the  American  mining  law  that  has 
provoked  more  spirited  discussion  and  against  which  a 
greater  amount  of  criticism  has  been  aimed  than  the  extra- 
lateral  right,  or  "law  of  apex,"  or  dip  right,  as  it  is  variously 
termed.  It  has  become  quite  popular  to  present  the  arraignment 
of  charges  which  can  legitimately  be  made  against  the  practical 
operation  of  this  right  and  there  is  scarcely  a  meeting  of 
importance  connected  with  the  mining  industry  where  some  one 
does  not  add  to  this  volume  of  condemnation.  In  all  this  dis- 
cussion, it  is  rare  to  find  a  word  of  commendation  and  not  only 
are  the  advantages  which  flow  from  the  exercise  of  this  right 
ignored,  but  in  the  general  demand  for  its  abolition  we  find  very 
little  well  considered  thought  given  to  the  serious  results  of  such 
action  and  few  suggestions  as  to  what  steps  should  be  taken  to 
minimize  the  grave  consequences  which  are  bound  to  follow  such 
a  radical  and  far  reaching  change  in  our  mining  law.  We  are 
too  prone  to  assume  that  legislation  is  a  panacea  for  all  defects 
in  existing  laws  and  not  enough  attention  is  paid  to  the  evils 
which  .  inevitably  flow  from  "-half  baked"  remedial  statutes. 
Judging  from  the  published  remarks  of  many  who  have  criticized 
the  extralateral  right,  the  opinion  seems  to  be  quite  prevalent  that 
all  that  is  necessary  to  be  done  to  cure  the  ills  that  are  inherent 
in  the  "law  of  apex"  is  for  Congress  to  pass  a  statute  abolishing  it. 
It  is  not  the  purpose  of  this  article  to  attempt  to  demonstrate 
that  the  extralateral  right  feature  should  be  retained  in  our 
mining  laws.  It  may  well  be  that  should  the  right  be  abolished,  a 
satisfactory  solution  of  the  difficulties  which  must  be  met  can 

*  There  are  several  bills  to  amend  our  mining  laws  pending  before 
the  present  Congress.  One  of  these  would  abolish  the  extralateral 
right  without  any  provisions  to  relieve  the  serious  consequences  of 
such  action.  This  discussion  is  prompted  by  this  proposed  revision. 


362    ••  CALIFORNIA  LAW  REVIEW 

be  reached.  But  this  article  is  written  in  the  hope  that  it  may 
correct  some  of  the  misinformation  which  has  been  circulated 
concerning  the  subject  and  unfortunately  generally  accepted,  and 
also  to  point  out  a  few  of  the  problems  which  must  inevitably  be 
dealt  with  in  a  satisfactory  way  if  we  are  to  avoid  placing  our- 
selves in  a  worse  position  than  we  now  occupy. 

With  this  object  in  view,  the  subject  will  be  presented  in  the 
following  manner: 

First:  From  a  comparative  standpoint,  treating  of  the 
existence  of  the  extralateral  right  in  the  mining  laws  of  other 
countries. 

Second:  From  a  historical  standpoint,  treating  of  the 
origin,  growth  and  development  of  the  right  in  the  United 
States. 

Third:  From  an  analytical  standpoint,  setting  forth  the 
arguments  for  and  against  the  right  and  the  consequences 
which  must  follow  its  abolition. 

I.       COMPARATIVE   TREATMENT 

In  a  discussion  of  this  character  it  is  interesting  to  know 
whether  other  systems  of  mining  law  have  similar  features  and 
what  has  been  the  result  of  their  operation.  It  has  been  errone- 
ously assumed  by  many  that  the  extralateral  right  is  a  unique 
burden  suffered  by  the  United  States  alone.  An  examination  of 
the  laws  of  other  countries  shows  that  this  is  not  a  fact. 
Naturally  we  cannot  expect  to  find  in  other  countries  an  extra- 
lateral  law  identical  in  all  respects  with  our  own.  It  is  the 
fundamental  principle  underlying  this  law  that  is  vital,1  viz :  the 
right  to  mine  on  and  pursue  a  vein  in  depth  beneath  surface 
ground  that  is  not  owned  or  controlled  by  'the  mine  operator.  In 
other  words,  the  right  to  follow  the  vein  in  depth  is  independent 
of  and  is  not  measured  by  surface  ownership,  hence  it  is  termed 
the  right  of  extralateral  pursuit.  It  is  usually  described  as  being 
opposed  in  principle  to  the  common  law  idea  of  ownership  of 
land,  where  the  owner  of  the  surface  is  entitled  to  everything 
situated  vertically  beneath.  As  Judge  Lindley  has  pointed 
out  in  his  treatise  on  the  Law  of  Mines2  the  common  law 


1  "The    application    of    the    term    'extralateral'    to    this    right    is    of 
comparatively   recent   origin   and   the   right   existed   long  prior   to   this 
designation."     Lindley  on  Mines,  3d  Ed.  §  568. 

2  Lindley  on  Mines,  3d  Ed.  §  568. 


EXTRALATERAL  RIGHTS  363 

recognized  the  right  of  severance  and  frequently  the  surface 
owner  conveyed  to  another  the  right  to  mine  a  vein  or  mineral 
bearing  strata  that  penetrated  or  lay  beneath  his  surface.  How- 
ever, the  extralateral  right  as  we  ordinarily  conceive  of  it  has  an 
element  that  did  not  exist  in  the  common  law.  In  the  exercise  of 
the  extralateral  right  the  vein  may  be  pursued  indefinitely  in 
depth  beneath  the  surface  of  adjoining  owners  who  have  nothing 
to  say  about  the  exercise  of  this  right  underneath  their  ground 
and  are  powerless  to  prevent  it.  The  right  has  been  created  by 
statute  or  custom  before  their  surface  ownership  attached  and 
the  vein  has  been  reserved  and  carved  out  of  their  estate.  It  is 
the  statutory  or  customary  origin  of  the  right,  giving  it  an 
indefinite  sweep  in  depth  and  the  fact  that  it  is  not  at  all  dependent 
upon  conveyance  from  private  owners  of  overlying  surface  nor 
for  its  measurement  upon  the  vertical  boundaries  of  such  surface 
ownership  that  distinguishes  the  extralateral  right  from  the  com- 
mon law  severance  of  minerals  from  the  surface. 

We  have  no  definite  information  as  to  whether  an  extra- 
lateral  right  was  exercised  in  ancient  times.  The  existing  record 
of  these  ancient  mining  laws  is  meager  and  a  great  part  of  the 
mining  was  carried  on  as  a  sovereign  venture  so  that  the  question 
of  extralateral  pursuit  would  seldom  arise.3  It  is  only  when  there 
are  adjoining  private  ownerships  that  a  situation  is  created  where 
the  question  becomes  important. 

Under  the  democratic  control  of  Athens  the  silver-lead  mines 
of  Mt.  Laurion  were  leased  in  small  adjoining  areas  to  individuals. 
One  might  expect  to  find  the  extralateral  right  a  feature  of  the 
Ancient  Greek  mining  law  were  it  not  for  the  fact  that  these  were 
flat  lying  contact  deposits  occupying  horizontal  beds  and  hence 
unsuited  to  the  exercise  of  any  dip  right.4 

Germany  and  Austria.  The  first  recorded  appearance  of  the 
extralateral  right,  so  far  as  the  writer  is  aware,  was  in  the  year 
1249,  and  is  contained  in  a  code  of  mining  law  proclaimed  for  the 
mining  town  of  Iglau  by  the  King  of  Bohemia.  By  its  terms  the 
discoverer  of  a  mine  "shall  have  by  right  in  that  which  is  com- 
monly called  the  roof  (hanging  wall  of  vein),  three  and  a  half 


3  Those  interested  in  the  subject  of  Ancient  Mining  Laws  will  find 
an  excellent  note  at  pp.  82-86  of  Hoover's  translation  of  Agricola,  De 
Re  Metallica. 

4  See  Hoover's  Agricola,  p.  83  footnote. 


364  CALIFORNIA  LAW  REVIEW 

Lehen  (an  ancient  Germanic  measure)  and  in  that  which  is 
called  foot  (wall  of  vein),  one  Lehen,  in  height  and  depth  in 
equal  proportions."  In  the  event  of  a  dispute  between  two  adjoin- 
ing claimants  the  matter  was  submitted  to  an  impartial  jury  of 
four  and  if  necessary  to  determine  whether  a  trespass  was  com- 
mitted or  not  the  two  workings  were  required  to  be  connected. 
Many  will  recognize  in  this  the  litigation  work  which  has  become 
such  a  pronounced  feature  of  our  modern  extralateral  cases.5 

It  is  in  the  mining  districts  of  the  various  states  that  after- 
wards became  merged  in  the  Germanic  and  Austrian  Empires  that 
the  extralateral  law  or  right  to  follow  the  vein  indefinitely  in 
depth  had  its  earliest  and  most  complete  development.  The  right 
was  founded  on  ancient  custom  and  its  origin  is  lost  in  the 
obscurity  which  surrounded  the  early  beginnings  of  mining  in 
those  regions.  It  later  became  crystallized  and  confirmed  in  the 
charters  and  proclamations  issued  by  the  various  kings  and  rulers 
of  these  states.  There  is  a  remarkable  similarity  running  through 
these  various  laws  in  force  in  the  different  districts  and  while 
details  differ  they  give  evidence  of  having  been  impressed  with  the 
same  ideas  which  were  doubtless  traceable  to  a  common  origin.6 

The  extralateral  right  in  force  in  these  Germanic  States  was 
complex  in  the  extreme.7  There  were  two  general  classes  of 
mining  claims.  The  L'dngenfeld,  sometimes  called  the  Gestrecktes- 


5  The    writer    acknowledges    his    indebtedness    to    Mr.    Herbert    C. 
Hoover  for  the  permission  to  use  the  foregoing  information  which  Mr. 
Hoover  collated  from  Geschichte  des  Bergbaues,  etc.,  Vol.  II,  pp.  14-35 
(1838)    by    Kaspar    von    Sternberg;    Dr.    J.    A.    Tomaschek.    Das    Alte 
Bergrecht  von  Iglau,  pp.  3-10   (1897),    and  Geschichte  der  Bohmischen 
und  Mahrischen  Bergwerke  by  J.  T.  Perthner,  (Wien,  1780). 

6  In  this  respect  these  mining  laws  bear  a  striking  resemblance  to 
the    miners'    rules    and    regulations    which    sprang    up    in    the    Western 
States  following  the  discovery  of  gold  in  1848.     They  were  founded  on 
custom   and   as   they    spread   through    the    other    mining    regions    from 
their   source   in   California   they  were   modified   in   details   but   retained 
similar  fundamental  principles. 

7  The  writer  is  indebted  to  his  wife,  Rachel  Vrooman  Colby,  and  to 
Mr.  W.  J.  Aschenbrenner  for  invaluable  assistance  in  the  translation  of 
the   Germanic  authorities  which  form  the   source   for  this   presentation. 
Some  idea  of  the  difficulties  encountered  in  translating  the  Old  German 
works    may   be   gained    from   the    fact   that   ten    different    German    dic- 
tionaries   devoted    exclusively   to    mining    terms    were    consulted.      The 
German   works  consulted  are:     Die  Vermessung   der   Langenfelder,   by 
von    Hatzfeld,    Oberbergamtsmarkscheider    in    Bonn,   published    in    Zeit- 
schrift    fur    Bergrecht,    (1899),    Vol.    40,    pp.    418-441;    Commentar    uber 
das  Bergrecht,  by  Chr.   G.  H.   Hake  (1823);  Anleitung"  zu  den   Rechten 
und   der   Verfassung   bey   dem    Bergbaue    im    Konigreiche    Sachsen,    by 
Kohler   (1824);   De  jure   Quadraturae   Metallicae,  by  S.   A.   W.   Herder 


EXTRALATERAL  RIGHTS 

feld  or  Streichendesfeld,  because  the  claims  were  measured  along 
the  strike  of  the  vein  by  long  measure  or  Langenmasz,  was  the 
class  of  mining  claim  which  exercised  the  extralateral  right.  The 
Geviertefeld  or  Seifenfeld  or  Quadratmasz,  was  a  squared  claim 
which  was  bounded  by  vertical  planes  passed  through  its  exterior 
surface  lines.  The  latter  class  of  claims  was  employed  to  cover 
placer  deposits  and  mineral  deposits  of  great  width  with  no  regular 
strike  or  dip  and  also  flat  or  bedded  veins  called  Flotze  which 
dipped  at  an  angle  of  20°  or  less,  measured  from  the  horizontal.8 

The  measuring  or  squaring  (Vierung)  of  the  Ldngenfeld9  and 
of  its  extralateral  right  was  an  involved  process.  There  was  first 
a  temporary  or  superficial  measurement  to  fix  approximately  the 
boundaries  so  that  other  prospectors  might  know  what  ground 
was  free  to  locate.  When  demand  was  made  by  a  claimant  or  his 
adjoining  owners,  and  the  mine  workings  sufficiently  extended  to 
enable  the  measurements  to  be  made,  the  formal  squaring  took 
place  which  established  the  boundaries  definitely  and  finally.  The 
surveyor  first  determined  the  main  strike  of  the  vein  and  marked 
this  line  out  on  the  surface.  The  discovery  shaft  was  the  cus- 
tomary starting  point  and  an  attempt  made  to  average  the  natural 
changes  of  the  strike  of  the  vein,  usually  resulting  in  an 
assumed  middle  line  from  which  the  lateral  measurements  of  the 
surface  boundaries  were  made.10  An  equal  distance  was  thus  meas- 
ured each  way  along  the  top  or  apex  of  the  vein  from  the  dis- 
covery point  and  the  two  terminal  or  end  points  of  the  length  taken 
on  the  vein  marked.  These  L'dngenf elder  varied  in  length  in  different 
mining  districts.  As  a  rule  the  Fundgrube  or  discoverer's  claim 
was  42  Lachters  in  length  and  adjoining  claims  or  Maszen  28 
Lachters..  The  total  legal  width  of  the  claim  on  the  surface  was 


(1839).  These  are  the  recognized  authorities  on  the  German  extra- 
lateral  right.  Other  authorities  too  numerous  to  mention  were  also  con- 
sulted. There  has  been  very  little  material  descriptive  of  the  Germanic 
extralateral  right  published  in  English.  Raymond  in  his  excellent 
review  of  the  mining  laws  of  the  world  appearing  in  Mineral  Resources, 
1869,  Part  II,  "Relations  of  Government  to  Mining/'  pp.  173-250  mem- 
tions  it  briefly,  p.  195. 

8  In  some  districts  the  angle  was  12°  and  in  others  15°. 

9  The  measuring  of  the  claim  was  called  the  "Vierung"  or  squaring 
of  the  claim  because  the  unit  of  measurement  was  usually  a  "Lehen", 
an  ancient  measure  which  was  a  square  measuring  7  "Lachters"   each 
way. 

10  This    is    somewhat    analagous    to    the    "lode    line"    of    American 
mining  locations. 


366  CALIFORNIA  LAW  REVIEW 

usually  7  Lachters,11  which  was  divided  either  equally  on  each 
side  of  the  vein,  or  the  entire  width  could  be  taken  on  one  side  in 
special  districts.  The  measurements  were  usually  made  from  the 
walls  of  the  vein,  leaving  the  vein  free  in  the  middle,  though  in 
earlier  times  they  were  made  from  the  middle  of  the  vein.  This 
was  called  the  squaring  of  the  claim  and  must  not  be  confused 
with  the  squaring  of  the  vein  itself  which  was  a  distinct  measure- 
ment. The  squaring  of  the  claim  resulted  in  a  definition  of  the 
surface  area  which  the  claimant  was  entitled  to  control.12 

After  a  squaring  of  the  claim  on  the  surface  had  taken  place 
it  was  necessary  to  determine  what  was  the  measure  of  the  right 
to  mine  on  the  vein  extralaterally.  The  longitudinal  limits  of  this 
extralateral  right  were  variously  determined.  There  seems  to  have 
been  a  lack  of  explicit  legal  regulation  of  the  manner  in  which  this 
should  be  done  and  few  data  are  found  in  the  literature  on  this 
subject  so  that  in  practice  much  doubt  and  many  conflicting  views 
arose  as  to  which  legal  principles  should  apply.13  The  procedure 
of  measurement  varied  with  the  conception  of  the  principle  adopted 
in  each  case.  The  measurement  most  commonly  employed  was  to 
pass  a  vertical  plane  through  each  marked  end  point  of  the  vein 
at  the  linear  extremities  of  the  claim  and  at  right  angles  to  the 
general  line  of  strike  or  average  course  of  the  vein,  and  extended 
into  depth.  These  parallel  planes  constituted  the  longitudinal 
boundaries  or  end  line  planes  of  the  Langenfeld,  between  which 
the  vein  could  be  worked  extralaterally  and  to  infinite  depth.1* 


11  A  "Lachter"  is  67.5  inches.     Hoover's  Agricola,  note, p.  78. 

12  Those    who    are    familiar    with    the    early    mining    history    in    the 
Western   states   of  the   United    States   will   appreciate   that    this   funda- 
mental idea,  so  prominent  in  the  measuring  of  the  claim  in  Germany,  of 
having  the  right  to  a  certain  length  of  vein  which   should  control  the 
laying    out    of    the    surface    boundaries    was    quite    widely    accepted    as 
being  in  force  here.  (Lindley  on  Mines,  §§  59,  573).  Later  the  courts  held 
that  the  actual  position  of  the  vein  did  not  control  the  boundaries  and 
the  locator  was  only  entitled  to  whatever  length   of  vein   he  included 
within  his  surface  lines.     (Flagstaff  Min.  Co.  v.  Tarbet  (1878),  98  U.S. 
463,   25   L.    Ed.   253).     In    Germany  the   vein   remained   the   controlling 
element   until   a   formal   squaring   of   the   claim   had   taken   place    which 
might    not    be    for    several    years.      In    the    United    States    the    surface 
boundaries   became   the   prime   factor   and   the   acquisition    of   the   vein 
was  subordinated  to  those  boundaries. 

13  It  is  interesting  to  note  that  also  in  England  the  mining  laws  of 
Derbyshire  and  in  the  United  States  the  mining  Act  of  1866  both  failed 
to  prescribe  any  rule  for  establishing  the  longitudinal  or  end  boundaries 
of  the  extralateral  segment  of  vein  that  attached  to  a  mining  claim. 

14  It  is  a  striking  coincidence  that  under  the  Act  of  1866  where  no 
specific   provision   was   made   for   measuring   the   extralateral   right   the 


EXTRALATERAL  RIGHTS 

Another  measurement  employed  in  some  instances  was  called 
the  Ball  or  Waterdrop  method.  This  limitation  was  ascertained 
by  passing  vertical  planes  through  the  lines  which  would  be 
established  if  we  imagine  the  path  of  a  ball  or  drop  of  water 
running  down  the  plane  of  the  inclined  vein  from  each  of  the  end 
points  of  the  claim.  If  the  strike  of  the  vein  changed  materially 
in  depth  this  would  naturally  produce  curved  or  bent  bounding 
planes.  Another  method  consisted  in  ascertaining  the  end  points 
of  the  lode  at  the  surface  by  measuring  out  the  length  of  the 
claim  in  both  directions  from  the  discovery  point,  following  the 
lode  in  all  its  windings  and  variations,  for  this  purpose,  and  then 
projecting  these  end  points  downward  from  level  to  level  using 
the  true  dip  of  the  vein  to  determine  the  projection.  By  connect- 
ing this  series  of  projected  end  points  the  longitudinal  boundary 
of  the  extralateral  right  was  ascertained.  There  were  still  other 
methods  used  for  determining  the  end  boundaries  but  in  modern 
times  the  measuring  of  these  at  right  angles  to  the  main  or  aver- 
age line  of  strike  became  the  general  rule.15 

The  squaring  of  the  vein  or  lode  itself  added  to  these  complica- 
tions. This  squaring  was  considered  much  more  important  and 
was  given  preference  over  the  squaring  of  the  claim,  for  the  latter 
had  more  to  do  with  fixing  surface  boundaries.  The  square  of  the 
vein  or  deposit  accompanied  the  lode  in  depth  in  all  its  variations 
and  directions  and  at  an  equal  distance  therefrom.  If  we  imagine 
two  planes,  one  on  each  side  of  the  vein  and  equidistant  from  it  and 
following  it  in  all  its  undulations  and  turnings  in  both  strike  and 
dip  into  unlimited  depth  we  have  the  artificial  limits  within  which 
the  miner  could  mine  and  follow  his  main  vein  and  if  his  claim 
was  the  senior  in  time  he  was  entitled  to  any  other  veins  or  por- 
tions of  veins  which  happened  to  exist  between  these  artificial 


American  courts  arrived  independently  at  the  same  general  result.  Mr. 
Justice  Field  in  Eureka,  etc.  Co.  v.  Richmond,  etc.,  Co.  (1877),  4  Sawyer 
302,  Fed.  Cas.  No.  4548,  said:  "Lines  drawn  vertically  down  through 
the  ledge  or  lode,  at  right  angles  with  a  line  representing  this  general 
course  (of  the  vein)  at  the  ends  of  the  claimant's  line  of  location,  will 
carve  out,  so  to  speak,  a  section  of  the  ledge  or  lode,  within  which  he 
is  permitted  to  work,  and  out  of  which  he  cannot  pass."  And  Mr. 
Justice  Temple  in  Argonaut  Min.  Co.  v.  Kennedy  Min.,  etc.,  Co.  (1900), 
131  Cal.  15,  28,  63  Pac.  148,  82  Am.  St.  Rep.  317,  used  the  following 
language:  "Planes  through  the  lode  at  the  end  lines  of  the  location 
at  right  angles  to  the  general  course  would  impose  the  required  limita- 
tion upon  the  rights  of  the  locator  along  the  lode." 

15  Zeitschrift  fur  Bergrecht,  Vol.  40  (1899),  pp.  430-431. 


368  CALIFORNIA  LAW  REVIEW 

bounding  planes.  If  at  any  particular  place  in  the  main  vein  it 
became  necessary  to  ascertain  where  these  imaginary  boundaries 
would  fall,  a  point  was  taken  on  the  wall  of  the  vein  and  a  straight 
line  passed  through  it  conforming  to  the  general  dip  of  the  wall  of 
the  vein  at  that  place  and  there  was  also  passed  through  the  same 
point  and  at  right  angles  to  the  dip  line  a  straight  line  conforming 
to  the  general  strike  of  the  vein  at  that  place.  At  the  point  of 
intersection  of  these  dip  and  strike  lines  a  third  line  perpendicular 
to  both  the  others  was  erected  and  extended  out  into  the  country 
rock  away  from  the  wall  of  the  vein  for  the  lawful  distance  and  the 
extremity  of  this  line  would  give  the  position  of  one  of  the  imagin- 
ary bounding  planes  of  the  Langenfeld  at  that  particular  point.  In 
other  words  the  width  of  the  territory  within  which  the  miner  was 
permitted  to  work  in  his  extralateral  mining  was  measured  from 
each  wall  of  the  vein  out  into  the  country  rock  and  at  right  angles 
to  the  wall.  This  distance  was  commonly  3^2  "Lachter"  in  the 
hanging  and  the  same  distance  in  the  foot,  i.  e.,  on  each  side  of  the 
vein.  In  some  districts  the  entire  width  could  be  taken  on  one  side 
of  the  vein.  The  total  width  varied  from  7  even  up  to  500 
"Lachter"  in  some  cases.  Usually  where  the  width  was  great  it 
was  measured  from  the  vein  on  a  horizontal  plane  instead  of  per- 
pendicularly from  the  walls  of  the  vein.  The  intersection,  branch- 
ing, faulting,  pinching  out  of  lodes  within  these  imaginary  planes 
and  the  consequent  conflicts  which  arose  between  junior  and  senior 
extralateral  claimants  gave  rise  to  the  innumerable  law  suits  and 
vexations  litigation  which  finally  resulted  in  the  abolition  of  this 
class  of  claims. 

In  the  case  of  the  Geviertefelder  or  squared  claims  with 
vertical  boundaries,  mining  was  sometimes  confined  within  these 
vertical  limits  to  a  particular  vein  or  bedded  deposit  with  the 
right  to  mine  a  specified  distance  into  the  hanging  and  foot  walls 
and  the  right  to  mine  on  underlying  or  overlying  veins  granted 
to  other  claimants.  Complications  naturally  arose  in  such  cases 
when  the  identity  of  the  particular  deposit  was  doubtful  or 
destroyed,  etc.,  and  claimants  of  other  deposits  contested  the  right 
to  continue  mining. 

There  is  a  general  impression  that  the  extralateral  right  is  a 
thing  of  the  past  in  Germany.  It  is  true  that  in  many  of  the 
mining  districts  the  extralateral  right  was  abolished  commencing 
in  the  early  part  of  the  nineteenth  century  and  that  the  general 
mining  law  of  June  24,  1865,  operated  to  abolish  it  completely,  but 


EXTRALATERAL  RIGHTS  369 

existing  vested  rights  were  recognized.  Owners  of  these  Ldngen- 
felder  carrying  extralateral  rights  were  given  the  privilege  of 
changing  to  Geviertef elder  or  claims  with  vertical  boundaries.  In 
spite  of  the  fact  that  the  procedure  for  making  the  change  was 
simple,  many  Ldngenf elder  claimants  either  did  not  desire  to  make 
the  change  or  were  unable  to  do  so  because  their  claims  were  so 
situated  with  reference  to  one  another  that  it  was  impossible  to 
readjust  them.  As  a  consequence,  there  are  still  in  existence  in 
Germany  today  thousands  of  claims  possessing  extralateral  rights 
and  complicated  cases  involving  the  exercise  of  these  rights  are 
of  not  infrequent  occurrence.  As  one  of  the  writers  on  this 
subject  states,  "This  is  the  inevitable  result  of  the  characteristic 
legal  nature  of  the  Ldngenf  eld  and  its  dependence  on  the  changes 
of  the  deposit."16  It  is  his  opinion  that  while  these  claims  may 
have  had  some  usefulness  under  simple  mining  conditions,  the 
incalculable  changes  in  strike  and  dip  of  the  mineral  deposits  gave 
rise  to  an  excessive  number  of  controversies  and  finally  brought 
about  the  abolition  of  the  law  granting  these  rights  so  far  as 
concerned  initiating  new  rights. 

This  action  of  the  Germanic  States  in  "abolishing  the  extra- 
lateral  form  of  claim  after  it  had  been  in  operation  for  over  six 
centuries  is  cited  as  one  of  the  strongest  arguments  in  favor  of 
similar  action  being  taken  by  the  United  States.  While  there  are 
the  same  general  underlying  reasons  here  for  such  a  change,  any- 
one familiar  with  the  German  form  of  extralateral  right  with  its 
much  greater  complexities  and  its  earlier  indefiniteness  with 
regard  to  its  longitudinal  measurement  in  depth  will  appreciate 
that  there  was  far  greater  justification  for  such  action  in  Germany. 
The  American  extralateral  law  with  all  its  complexities  is  compara- 
tively simple.  Here  we  have  surface  claims  the  boundaries  of 
which  are  defined  and  which  only  depend  in  a  minor  degree  upon 
the  position  of  the  mineral  deposit.  Subsequent  development 
showing  that  the  claim  does  not  conform  to  the  position  of  the 
vein  will  not  necessitate  readjustment  of  boundaries.17  Under  the 
Germanic  law,  the  surface  boundaries  of  the  claim  were  usually 


16  Zeitschrift  fur  Bergrecht  (1899),  p.  419.  The  measuring  of  Lang- 
enfelder,  by  von  Hatzfeld,  Mining  Surveyor  General  in  Bonn.  There 
are  ten  mining  districts  in  this  jurisdiction  where  there  are  extensive 
mining  operations  being  carried  on  in  these  Langenfelder  there  being 
over  3000  in  the  jurisdiction  of  this  Surveyor  General  alone. 

"Harper  v.  Hill  (1911),  159  Cal.  250,  113  Pac.  162. 


370  CALIFORNIA  LAW  REVIEW 

dependent  upon  the  ascertained  position  of  the  apex  which  might 
take  years  to  establish,  and  meanwhile  the  claim  was  for  its 
greater  part  a  "float."  Provision  was  made  for  a  temporary  ascer- 
tainment of  boundaries  but  this  only  added  to  the  complexity  as 
the  temporary  survey  yielded  to  the  later  permanent  measurement. 
The  rules  for  ascertainment  of  boundaries  in  the  event  the  vein 
pinched  out  or  split  into  branches  or  was  faulted  were  also  so 
involved  that  there  is  not  space  to  discuss  these  complex  and  intri- 
cate features.  Anyone  familiar  with  the  many  intricacies  and 
indeterminate  features  connected  with  the  ascertainment  of  the 
Germanic  extralateral  right  will  appreciate  that  the  American 
law  with  its  definitely  fixed  surface  boundaries  and  well  defined 
extralateral  planes  passed  through  parallel  end  lines  is  simple  by 
comparison. 

France.  The  extralateral  right  does  not  appear  to  have 
obtained  a  pronounced  hold  on  the  mining  law  of  France 
though  it  existed  there  in  a  modified  degree  in  the  early  days  of 
mining  under  customary  rights.18  Aguillon  says  this  system  of 
granting  inclined  locations  was  abandoned  in  France  in  i8io.19 
However,  while  the  mining  law  of  the  Empire,  April  2ist,  1810, 
provided  that  in  general  the  limits  of  a  mining  concession  were 
to  be  fixed  by  vertical  planes  passed  through  a  perimeter  laid  out 
on  the  surface,20  there  was  nothing  in  the  act  to  prevent  their 
being  inclined  according  to  the  formation  of  the  deposit.  The 
concessions  may  be  granted  by  beds,  i.  e.  following  bedded  and 
inclined  deposits  but  this  was  not  considered  as  regular.21  Con- 
cessions of  this  character  were  granted  in  conformity  to  the  "pre- 
judices and  very  unfortunate  customs"  of  one  of  the  mining 
districts — that  of  Jemmapes.22 

While  the  extralateral  right  did  not  appear  in  France  except 
in  the  cases  noted,  yet  it  is  clear  that  the  fundamental  principle 
underlying  this  right,  viz :  the  severance  of  the  mineral  from  the 
surface  was  one  of  the  prime  characteristics  of  French  mining  law. 


18  The  writer  is  indebted  to  his  wife  for  a  portion  of  the  translation 
of  the  material  which  forms  the  basis  for  this  discussion. 

19  Legislation  des  Mines,  Etrangere  (1891),  Vol.  II,  p.  48. 

;0  The  Act  itself  provides  that  vertical  bounding  planes  must  be 
adopted  "unless  the  circumstances  and  localities  require  another  mode 
of  limitation,"  Title  IV,  Section  I,  rule  29. 

L  Halleck's  De  Fooz  on  the  Law  of  Mines  (1860),  p.  120. 

22  Exposition  of  the  Law  of  1810  by  Count  Regnault  de  Saint  Jean- 
D'Angely.  De  Fooz,  appendix  C,  pp.  250-251. 


EXTRALATERAL  RIGHTS  37* 


The  philosopher  Turgot  in  a  periodical  of  i^6g,2Z  urged  that 
each  land  owner  as  a  matter  of  natural  equity  should  have  the 
right  to  mine  on  his  own  ground  and  then  to  pass  underneath  in 
the  subsoil  of  his  neighbor  without  the  latter'  s  consent  and  become 
the  owner  of  the  material  which  he  extracted  therefrom.24  Dupont 
criticizes  this  system  as  an  application  to  the  mining  industry  of 
the  celebrated  doctrine  of  laissez  faire  which  would  result  in  the 
most  complete  anarchy  —  a  true  subterranean  war.25  Curvelier 
criticizes  the  system  as  Utopian.26 

Practically  all  of  the  French  philosophers  and  statesmen  who 
have  expressed  themselves  on  the  subject  agree  that  there  is  noth- 
ing in  common  as  far  as  ownership  of  the  surface  and  of  the 
mineral  underneath  is  concerned.  De  Fooz  says  :  The  "nature  of 
things",  the  "general  principles  of  right",  and  "general  utility"  do 
not  permit  the  surface  to  be  confounded  with  that  which  is 
beneath.  The  surface  may  be  divided  ad  infinitum  and  this  renders 
its  culture  easier  and  more  productive  but  mines  are  not  divisible 
like  the  surface  and  their  occurrence  has  nothing  in  common  with 
the  configuration  of  the  surface.27  Jousselin  says  mines  have  a 
conformation  of  their  own  which  in  no  way  depends  upon  the 
character  of  the  surface  and  can  be  worked  to  advantage  when 
they  are  treated  in  mass  or  in  sections  of  certain  extent,  without 
reference  to  surface  boundaries.28  A  vein  which  forms  a  mine  may 
extend  into  the  depth  of  the  earth  a  considerable  distance  beneath 
surface  properties  infinitely  divided  among  the  surface  owners. 
Which  one  of  these  surface  owners  ought  to  have  the  property  in 
the  vein?  It  is  necessary  in  order  to  work  mines  to  advantage  to 
treat  mines  in  mass,  or  in  sections  of  definite  extent  determined 
by  the  position  and  character  of  the  beds  or  veins.29  Mirabeau 
concluded  one  of  the  most  famous  debates  on  the  fundamental 
principles  of  a  true  property  in  mines  which  took  place  in  the 
French  Chamber  of  Deputies  in  1791  by  saying:  "The  oblique 
direction  of  a  mine  may  in  a  short  distance  pass  underneath  a 


23  Memoire  au  Conseil  d'Etat. 

2*Naudi-er,  Legislation  des  Mines  (1877),  p.  38. 

25  Dupont,  Legislation  des  Mines  (1862),  Vol.  I,  p.  5. 

26  Curvelier,  Legislation  Miniere  (1902),  p.  5. 

27  Halleck's  De  Fooz,  p.  10. 

28  Traite  des  servitudes  d'utilite  publique. 

29  Report  of  Count  Girardin  on  the  Law  of  1810.     De  Fooz,  p.   10, 
note  2,  and  Appendix  D,  p.  259. 


372  CALIFORNIA  LAW  REVIEW 

hundred  different  properties.  We  already  know  too  well  the 
scourge  of  war  upon  the  surface  of  the  globe;  there  is  no  need  of 
adding  to  it  the  scourge  of  a  subterranean  war."30  He  also 
argued  that  the  proprietary  right  of  the  surface  owner  could  not 
possibly  apply  to  minerals  several  hundred  feet  in  depth.  "They 
cannot  be  a  complement  to  the  soil,  and  are  moreover,  by  their 
course,  unfit  to  be  included  in  a  partition  of  the  surface."  He 
pointed  out  the  fact  that  the  surface  proprietor  seldom  had  the 
capital  to  develop  a  mine  and  if  he  did  he  might  find  the  valuable 
part  of  the  vein  to  be  under  his  neighbor's  property.31  The  surface 
overlying  a  mine  may  be  fertile  or  barren,  cultivated  or  unculti- 
vated and  the  owner  thereof  has  done  absolutely  nothing  towards 
the  acquisition,  increase  or  creation  of  the  mineral  wealth  con- 
cealed thereunder.32  De  Fooz,  therefore,  concludes  that  as  a 
matter  of  art,  of  right,  and  of  interest  the  regalian  doctrine  ought 
to  prevail  over  the  narrow  principle  of  private  ownership  and  that 
mines  and  the  outcrops  of  mines,  i.  e.,  the  points  where  they  rise 
to  the  soil  belong  to  the  nation  rather  than  to  the  surface  pro- 
prietor.33 

Napoleon  at  first  opposed  this  idea  because  he  interpreted 
article  552  of  his  famous  Civil  Code  to  grant  to  the  proprietor  of 
the  surface  everything  beneath  and  the  doctrine  of  a  national 
property  in  mines  would  violate  this  principle  of  private  ownership 
which  he  had  already  promulgated.  The  counter  arguments 
advanced  in  the  Council  of  State  and  already  noted  finally  pre- 
vailed and  in  order  to  avoid  the  acknowledgment  of  defeat  the 
Emperor  resorted  to  a  fiction,  entirely  his  own,34  "that  mines  are 
a  new  property;  the  right  of  working  them  forms  a  new  wealth; 
and  the  property  of  mines  does  not  exist  prior  to  their  concession." 
The  famous  French  Law  of  Mines  of  April  2ist,  1810,  was  the  out- 
come.35 The  surface  proprietor  was  recognized,  however,  for  he 


30  De  Fooz,  p.  10,  note  4  and  p.  13. 

31  Foreign  Mining  Laws,  Vol.  II,  Part  I,  Transactions  of  the  Min- 
ing Association  and  Institute  of  Cornwall  (1888),  pp.  35-36. 

32  Compte,  de  la  Propriete,  De  Fooz,  p.  11,  note  6. 

33  p.   13. 

34  A  "real  property  separated  from  the  surface  is  a  conception  abso- 
lutely   new,    which    emanated    from    the    genius    who    consolidates    and 
aggrandizes  each  day  the  destinies  of  France."     Report  of  Count  Stan- 
islas Girardin,  Appendix  D,  Halleck's  De  Fooz,  p.  266. 

35  De  Fooz,  pp.  37-42. 


EXTRALATERAL  RIGHTS  373 

was  paid  a  small  royalty  or  rental  depending  upon  the  area  of  sur- 
face required  for  successful  operation. 

As  a  result  of  the  careful  analysis  of  underlying  principles  and 
searching  debate  which  preceded  the  adoption  of  the  French 
Mining  Law  by  the  Chamber  of  Deputies,  it  is  ideal  from  a  theo- 
retical standpoint.  The  mineral  deposit  is  a  property  distinct 
from  the  overlying  surface  and  the  Council  of  Mines  determines  in 
each  case,  from  the  evidence  produced,  whether  it  should  give 
preference  in  the  granting  of  a  concession  to  the  discoverer,  or  the 
proprietor  of  the  surface  or  to  another  applicant.  The  person  or 
company  best  qualified  to  undertake  the  venture  usually  received 
the  concession.  The  extent  of  the  concession,  within  a  maximum 
limitation,  depended  upon  the  character  of  the  deposit  and  was 
determined  largely  by  economy  of  operation.  A  perimeter  was 
marked  out  on  the  surface  and  the  concessionaire  operated  on  the 
vein  or  mineral  deposit  within  vertical  planes  passed  through  this 
perimeter.  The  owners  of  the  surface  within  the  perimeter  con- 
tinued to  cultivate  or  use  the  surface  except  such  portions  as  were 
required  for  actual  mining  operations  and  for  which  portions  com- 
pensation was  paid.  Other  veins  or  bedded  deposits  within  the 
perimeter  might  be  excluded  and  granted  to  other  parties,  as  the 
concession  usually  carried  the  right  to  mine  only  on  one  particular 
deposit  or  vein.  When  a  concessionaire  had  mined  to  the  limit  of 
his  concession  an  extension  of  the  perimeter  was  usually  granted 
him  since  economy  of  operation  justified  such  a  course.  It  will  be 
apparent  that  these  advantages  of  granting  concessions  to  those 
best  qualified  to  undertake  the  venture  and  of  making  the  extent 
of  the  concession  dependent  solely  upon  the  character  and  occur- 
rence of  the  deposit  which  was  consequently  not  forced  into 
claims  of  uniform  and  unvarying  size  and  likely  to  be  unsuited  to 
the  particular  deposit  is  perfect  in  conception.  This  system 
embodies  a  fundamental  feature  of  the  extralateral  right,  viz:  the 
right  to  mine  on  the  vein  without  acquisition  of  surface  ownership. 
While  the  other  characteristic  feature  of  indefinite  pursuit  of  the 
vein  in  depth  is  lacking,  the  right  to  extend  his  perimeter  in  that 
direction  was  invariably  granted  to  the  concessionaire  whose  work- 
ings were  most  favorably  situated  for  economic  mining. 

While  this  system  is  ideal,  considered  from  most  angles,  yet 
like  many  ideal  systems  its  successful  operation  depends  upon  ideal 
circumstances.  In  a  country  like  France,  thickly  populated  and 


374  CALIFORNIA  LAW  REVIEW 

with  mining  confined  to  comparatively  well  defined  areas  such  a 
paternalistic  surveillance  as  is  exercised  by  the  Council  of  Mines 
and  the  Engineers  of  Mines  probably  yields  the  best  results,  but 
in  the  Western  part  of  the  United  States  where  the  mining  dis- 
tricts are  sparsely  settled  and  largely  in  remote  and  rugged 
regions,  such  a  system  would  be  impossible  of  administration. 
Walmesley  says  that  the  principal  objection  to  the  French  system 
is  "too  much  State  control."36  It  is  an  interesting  commentary  on 
the  urgent  demand  for  a  change  in  our  mining  laws  to  note  that  in 
1889  a  Commission  of  Deputies  reported  to  the  Chamber  on  the 
subject  of  revision  of  the  French  Mining  law  that  the  main  object 
of  legislation  should  be  to  free  the  mine  owner  of  state  control  as 
much  as  possible;  that  England  and  the  United  States  are  in  the 
almost  complete  possession  of  a  law  as  wise  in  its  simplicity  as 
that  which  they  indicate  as  the  perfection  of  mining  law;  that 
everywhere  the  power  of  the  State  in  such  matters  is  being 
restrained;  and  that  everywhere  greater  belief  is  being  placed  in 
private  enterprise  and  industrial  liberty  and  that  it  is  a  remark- 
able fact  that  the  more  this  faith  increases  the  more  mineral 
wealth  is  developed.37  The  policy  of  severing  the  mineral  from  the 
surface  and  disposing  of  each  separately  is  a  most  desirable 
feature,  however,  and  it  is  regrettable  that  it  was  not  adopted  in  the 
United  States  in  the  infancy  of  mining  here.38 

England.  In  the  main,  the  law  of  England  on  the  subject  of 
mines  did  not  recognize  any  severance  of  the  vein  from  the  sur- 
face. The  surface  owner  was  entitled  to  everything  found  ver- 
tically beneath  his  surface,  except  royal  mines,  i.  e.  mines  of 
precious  metals,  and  these  latter  were  of  little  importance  in  Eng- 
land. There  were  some  noteworthy  exceptions,  however. 

In  Derbyshire  there  existed  a  local  mining  law  which  was  the 
outgrowth  of  ancient  customs  and  regulations  adopted  by  the 
miners  themselves.  It  marked  a  wide  departure  from  the  ordi- 
nary conception  of  common  law  property  rights.  Under  this  law 


3«  Mining  Laws  of  the  World  (1894),  p.  50. 

37  Walmesley,  Mining  Laws  of  the  World,  p.  52. 

38  The  severance  of  mineral  from  the  surface  and  the  policy  of  dis- 
posing of  each   separately  has   recently  been   adopted   by  the   Federal 
Government  in   the   case   of  public   lands   valuable   for   oil,   coal,   phos- 
phates, nitrates,  potash,  gas,  and  asphaltic  deposits,  etc.     See  38  Stat.  at 
L.  509;  35  Stat.  at  L.  844;  36  Stat.  at  L.  583;  37  Stat.  at  L.  105;  38  Stat. 
at  L.  335;  37  Stat.  at  L.  497;  and  37  Stat.  at  L.  687. 


EXTRALATERAL  RIGHTS  375 

the  miner  had  a  right  to  enter  upon  privately  owned  lands  within 
certain  districts  to  "dig,  delve,  subvert,  mine,  turn  up  all  manner 
of  Grounds,  Lands,  Meadows,  Closes,  Pastures,  Moors  or  Marshes 
for  Lead-ore  ....  dwelling-houses,  Highways,  Orchards  or 
Gardens  excepted/'39  The  first  finder  (discoverer)  of  a  vein  was 
entitled  to  two  meers  or  measures  along  the  vein  and  the  lord  who 
owned  the  ground  to  one  meer  and  each  locator  thereafter  to  one 
meer.  These  meers  were  linear  measurements  along  the  apex  of 
the  vein  at  the  surface  and  in  different  districts  varied  from  27,  29, 
31,  to  32  yards  in  length.  Meer  stakes  at  each  end  served  to  mark 
the  possession.  The  width  of  the  claim  was  a  quarter  cord  or 
quarter  meer  measured  either  from  the  skirts  (walls)  of  the  vein 
or,  according  to  the  contention  of  the  owner  of  the  land,  from  the 
center  of  the  vein.40  Within  this  width  the  miner  had  the  right  to 
erect  necessary  mine  buildings,  store  ore  and  waste,  but  all  of  this 
width  that  he  did  not  need  for  these  purposes  belonged  to  the  owner 
of  the  surrounding  land  for  "it  is  not  the  land,  but  the  necessary- 
privilege  of  working  the  mine  that  is  granted  the  miner."41  Some 
have  questioned  whether  an  extralateral  right  was  granted  by  these 
customs  and  while  there  is  no  explicit  language  contained  in  any 
of  the  Articles  to  indicate  that  such  is  the  fact,  nevertheless  their 
examination  leads  to  the  unquestionable  conclusion  that  such  a 
right  did  exist.  The  Articles  provide  for  litigation  work,  inspec- 
tion of  adjoining  mines  to  ascertain  if  a  trespass  has  been  com- 
mitted, and  penalty  for  trespass  on  another  claimant's  forefield. 
The  descriptions  of  dialling  (surveying)  to  ascertain  whether  a 
claimant  had  reached  the  limit  of  his  possession  also  indicate  the 
existence  of  the  right.  From  these  descriptions  it  is  evident  that 
the  longitudinal  limit  of  the  extralateral  right  in  depth  is  measured 
by  vertical  planes  passed  through  each  end  of  the  claim  at  right 


39  Houghton,  Rara  Avis  in  Terris  or  The  Compleat  Miner    (1681), 
p.  14.     For  additional  information  regarding  these  unique  laws  see:  The 
Compleat   Mineral  Laws  of  Derbyshire,   Steer   (1734);  A  Collection   of 
Scarce    and    Valuable    Treatises    on    Mines,    etc.,    Payne    (1738);    The 
Miner's  Guide,  Hardy  (1748);  The  Rhymed  Chronicle  by  Manlove,  etc., 
Tapping's   edition    (1851);    Fodinae   Regales,   Pettus    (1670);    Bainbridge 
on  Mines  and  Minerals,  6th  ed.  (1900);  MacSwinney  on  Mines,  3rd  ed. 
(1907). 

40  It    is    interesting   to    note    that    the    identical    dispute    as    to    the 
measurement   of  the  width   of  the   claim   existed  in   Germany.     Hake, 
Bergrecht,  p.  146. 

41  Mander's  Derbyshire  Miners'  Glossary,  p.  56. 


376  CALIFORNIA  LAW  REVIEW 

angles  to  the  general  course  of  the  vein.42  The  whole  matter  is  set 
at  rest,  however,  by  the  testimony  of  the  barmasters  or  head  min- 
ing officials  given  before  the  Royal  Commission  on  Mining 
Royalties  in  1891.  The  barmaster43  of  the  wapentake  of  Wirks- 
worth  or  Low  Peak  in  Derbyshire  was  asked  what  the  owner  of 
the  surface  received  in  payment  from  a  claimant  who  staked  out 
a  claim  on  it  for  the  purpose  of  prosecuting  mining  and  his 
answer  was,  "Nothing  at  all  ....  The  mining  customs  do  not 
recognize  the  surface  land  at  all;  the  mining  laws  recognize  the 
veins  so  far  as  the  grantor  goes,  but  every  man  has  as  much 
room  as  is  necessary  for  dressing  (treating  ore)  in  the  field."44 

The  barmaster  of  the  High  Peak  when  asked  how  far  under- 
ground a  miner  might  go  as  distinguished  from  the  surface  he 
required,  answered,  "he  can  go  underground  as  far  as  he  likes.  Q. 
Can  he  drive  his  lode  as  far  as  he  likes?  Yes."45  The  Derby- 
shire extralateral  right  is  the  purest  form  of  this  right  that  exists. 
A  certain  length  of  vein  is  laid  out  on  the  surface  and  the  miner 
has  the  right  to  follow  this  vein  to  unlimited  depth  between  vertical 
planes  passed  through  the  ends  of  the  claim  at  right  angles  to  the 
course  of  the  vein.46  The  vein  was  the  principal  thing  and  the 
surface  an  incident.  In  this  respect,  our  Act  of  1866  closely 
resembles  the  Derbyshire  right.47 

There  has  been  considerable  speculation  as  to  the  origin  of  the 


42  Houghton,    Compleat    Miner,    pp.    94-101;    Hardy,    Miner's    Guide 
(1749),  pp.   142-150.     As  already  noted,  this  is  the  same  measure  of  the 
extralateral  right  that  has  been  generally  adopted  in  Germany  and  also 
in  the  United  States  under  the  Act  of  1866,  where  in  both  cases  the  law 
was  silent  as  to  how  this  right  should  be  measured. 

43  In  Germany  the  "Bergmeister"  and  in  early  mining  in  France  the 
"bourgmestres"  performed  similar  functions. 

44  Third    Report    of    the    Royal    Commission    on    Mining    Royalties, 
p.   52. 

15  Id.,  p.  54. 

48  The  Derbyshire  rake-veins  to  which  this  measure  was  applied 
were,  comparatively  speaking,  ideal  veins,  being  nearly  perpendicular, 
their  hade  or  inclination  being  only  one  foot  in  ten  and  their  course 
generally  following  a  straight  line.  Mineralogy  of  Derbyshire,  Mawe, 
pp.  32-33.  Treatise  on  Ore  Deposits,  von  Cotta  (Trans,  by  Prime,  p. 
431.)  The  flat-veins  of  Derbyshire  were  taken  up  by  claims  14  yards 
square.  Houghton  p.  2. 

47  The  writer  is  the  fortunate  possessor  of  a  rare  work  a1so  edited 
by  Houghton  (1694)  entitled  "Articles  to  Establish  and  Confirm  Laws, 

Liberties,  &  Customs  of  Silver  &  Gold  Mines in  America  .  .  .  .  " 

in  which  Houghton  proposes  that  Parliament  make  mining  laws  sub- 
stantially similar  to  those  of  Derbyshire  applicable  to  the  English 
colonies  in  Africa  and  America.  In  view  of  the  strikingly  similar 
miners'  customs  which  eventually  sprang  up  in  the  Western  United 


EXTRALATERAL  RIGHTS  377 

Derbyshire  extralateral  right.  Hoover48  believes  that  the  law  of 
this  district  is  of  Saxon  importation.  Blavier49  says  that  the  bye- 
laws  of  Derbyshire  resemble  the  mining  laws  of  Saxony.  Smirke50 
states  that  many  of  the  mining  terms  of  ordinary  use  in  Derby- 
shire correspond  almost  exactly  with  the  Plait  Deutsch  terms  of 
the  German  mines  and  that  there  is  no  difficulty  in  accounting  for 
this  when  authentic  records  indicate  the  frequent  importation  into 
England  and  employment  of  German  miners  from  1271  down  to 
the  1 8th  century.51  This  view  seems  quite  reasonable  though 
Lewis  in  his  work  on  the  Stannaries  intimates  that  the  laws  of  the 
Derbyshire  lead  miners  are  customs  dating  back  to  a  time  beyond 
the  memory  of  man  and  notes  that  Pliny  refers  to  the  fact  that  the 
lead  miners  in  the  interior  of  Britain  are  governed  by  certain 
rules  of  their  own  making.52  This  would  antedate  even  Germanic 
influence.  There  is  no  question  but  that  the  Germanic  impress  is 
pronounced.  That  the  extralateral  right  was  an  importation  is 
doubtful,  for  if  lead  mining  and  customs  dated  back  to  the  days 
of  the  Romans  the  exercise  of  that  right  had  probably  already 
taken  place.  It  is  the  normal  and  natural  way  of  mining  on  veins 
as  steep  in  dip  and  as  ideal  in  occurrence  as  are  the  rake  veins  of 
Derbyshire.  The  early  miners  with  simple  methods  would  pay 
little  attention  to  surface  rights  which  were  comparatively  value- 
less, except  such  limited  portions  as  were  required  for  their  mining 
operations,  and  would  merely  stake  out  lengths  of  apex  on  the 
surface.  There  is  no  resemblance  between  the  extralateral  right 
of  Saxony  with  its  artificial  planes  in  the  hanging  and  foot  walls 
of  the  vein  accompanying  it  on  the  dip  down  into  infinite  depth 
and  with  a  right  to  everything  found  between  these  planes,  and 
the  Derbyshire  right  to  follow  the  vein  only,  subject  to  the  condi- 
tion that  if  the  vein  branched  and  the  separation  continued  for  the 
distance  of  half  a  nicer,  the  branches  were  pronounced  as  two  dis- 
tinct veins.  So  long  as  the  Rither,53  or  strip  of  country  rock  lying 


States  upon  the  discovery  of  Gold  in  1848  this  proposal  is  little  short 
of   prophetic. 

48  Hoover's  Translation  of  Agricola,  note  p.  77. 

49  Jurisprudence  des  Mines,  Vol.  1,  p.  18. 

50  Stannaries  of  Cornwall   (1843)   p.  94  note  g. 

51  See   also    Mander's    Glossary   of  Technical  Terms   of   Derbyshire 
Miners    (1824)    which    notes   a   large    number   of   words    of    Saxon   and 
Teutonic  origin  and  Raymond,  Mineral  Resources  1883-4,  p.  996. 

52  The  Stannaries  (1908)  pp.  82-83. 

53  The   Saxon   influence  is   seen   even   here  for  the  word   Rither   is 
derived  from  the  Saxon  word  "wrythan."     Mander's   Glossary,  p.  60. 


378  CALIFORNIA  LAW  REVIEW 

between  the  two  veins  "may  be  taken  down  by  firing  on  the  side,  it 
is  to  be  taken  and  reputed  but  for  one  vein,  but  in  case  the  Rither  be 
so  thick  that  it  cannot  be  taken  by  firing  on  the  one  side,  and  the 
Veins  go  so  asunder,  for  half  a  Meer  in  length,  then  they  are  service- 
able to  the  Miner,  as  two  distinct  Veins,"  and  each  was  required  to 
be  taken  up  in  a  separate  claim.54  The  fact  that  in  both  Derby- 
shire and  Germany  the  longitudinal  or  end  limits  of  the  extra- 
lateral  right  in  depth  were  vertical  planes  at  right  angles  to  the 
general  course  of  the  vein  might  support  the  view  of  common 
origin  were  it  not  for  the  fact  that  this  is  the  natural  and  obvious 
limit  and  that  no  other  mode  of  measurement  is  logical  under  the 
circumstances  unless  we  invoke  the  parallel  end  line  measurement 
of  our  federal  act  of  1872. 

The  lead  miners  in  the  forest  of  Mendip  also  mined  under  old 
customs  which  were  not  as  complete  in  detail  as  the  Derbyshire 
laws  but  similar  in  many  respects  and  undoubtedly  contemplating 
extralateral  rights.  The  extent  of  the  miner's  or  grovier's  right  to 
mine  on  the  vein  was  ascertained  by  his  standing  "to  the  girdle  or 
waste"  in  his  groof  or  mine  working  and  heaving  his  "hacke"  or 
pickaxe  "two  ways  after  the  rake"  or  vein.  In  modern  language 
the  miner  stood  waist  deep  in  his  discovery  shaft  and  threw  his 
pickaxe  in  each  direction  along  the  apex  of  the  vein  both  for- 
ward and  backward  "as  the  chyne  or  rake  goeth."  This  determined 
the  extent  of  his  boundaries.55 

The  lead  deposits  of  Alston  Moor  were  also  another  center  of 
free  mining  with  "liberties  and  Customs"  similar  in  some  respects 
to  those  just  noted.56 

In  the  famous  Forest  of  Dean  only  male  persons  born  in  the 
hundred  of  St.  Briavels  and  who  had  worked  a  year  and  a  day  in 


B*  Houghton,  Article  XXXIV,  p.  37. 

55  Smirke  in  his  work  on  the  Stannaries,  p.  127,  note  c,  makes  the 
comment  that  this  is  a  curious  instance  of  the  "Hammerwurf"  of 
Teutonic  antiquity  and  (p.  128,  note  e)  has  its  parallel"  in  the  arrow 
flight  of  the  Bohemian  "montani"  and  in  numerous  instances  cited  by 
Grimm,  Alterthiimer,  etc.  In  the  Dean  Forest  (p.  132)  "the  pit  (mine 
working)  shall  have  such  liberty  and  franchises  that  no  man  shall  come 
within  so  much  space  the  miner  may  stand  and  cast  so  far  from  him 
redding  (ridding?)  and  stones  with  a  bale,  as  the  manner  is;  and  shall 
have  his  marks  pertaining  to  the  said  pit."  The  Laws  and  Orders  of 
the  Mendip  Miners,  commonly  called  Lord  Choke's  Laws  are  also  found 
in  a  work  on  the  County  of  Somerset  by  Billingsby  (1797))  p.  23  seq. 

66  Lewis,  pp.  79-80;  Smirke  pp.  124-5;  The  Mining  Districts  of 
Alston  Moor  (1833),  Sopwith,  p.  19. 


EXTRALATERAL  RIGHTS  379 

a  coal  or  iron  mine  were  Free  Miners  and  entitled  to  take  up  or 
"gale"  these  mines  in  the  forest.57  These  Free  Miners  met  at  the 
"Speech  House"  and  regulated  the  operation  of  their  own  laws 
and  customs.  In  galing  or  granting  the  right  to  mine  the  gaveller 
(mine  official)  fixed  a  starting  point  and  no  other  limit  was 
assigned.  No  gale  could  be  granted  to  another  within  100  yards 
of  this  starting  point.  This  distance  was  later  increased  till  it 
reached  1000  yards.  Since  contiguous  claims  had  no  definite 
boundaries  it  became  a  matter  of  contention,  or  a  "race  of  dili- 
gence" as  our  federal  court  has  expressed  a  similar  situation  here, 
as  to  which  miner  could  first  obtain  possession  of  the  intervening 
ground  by  extending  his  workings.58  These  workings  might  be 
carried  to  an  indefinite  extent — "as  far  as  the  vein  extends" — 
unless  interrupted  by  another  working.59  Because  of  this  great 
uncertainty  as  to  ownership  Parliament  intervened  and  a  Com- 
mission was  appointed  in  1838  which  awarded  definite  boundaries 
to  all  legitimate  claimants,  and  followed  the  ancient  customs  as 
far  as  possible,  confining  a  claimant  to  one  vein  or  bed  and  "under- 
lying or  other  veins  not  so  awarded  or  galed  may  be  galed  to 
other  parties."60 

Spain  and  Spanish  America  (Peru  and  Mexico).  The  fabulous 
wealth  of  the  mines  worked  under  Spanish  rule,  particularly  in  her 
possessions  in  the  New  World,  stimulates  our  interest  in  her  min- 
ing laws. 

While  we  would  naturally  expect  Spanish  laws  to  reflect  the 
influence  of  the  civil  law,  we  find  little  impress  on  her  mining  code 
from  this  source.  In  making  an  analytical  study  of  the  Spanish 
mining  laws  one  is  struck  by  the  similarity  of  many  of  the  pro- 
visions to  those  of  the  early  Germanic  mining  codes,  especially  the 


57  Dean  Forest  Award,  Sopwith  (1841);  Laws  of  Dean  Forest,  Wood 
(1878). 

58  "When    parties    under    different    gales    were    approaching    each 
other,  they  might  proceed  until  their  mattocks  should  meet."     Fourth 
Report,  Dean  Forest  Commissioners,  p.  8. 

59  Early  Germanic  mining  claims  were  also  unmeasured  areas,  the 
only  regulation  being  one  which   forbade  too  close   an  approach   to  a 
neighboring  claim,   Lewis,    163   note  4. 

60  Sopwith,  167,  202.     Free  Miners  also  worked  quarries  of  stone  in 
the  Forest  of  Dean,  the  lines  of  each  gale  or  claim  being  parallel  and  at 
right  angles  from  that  side  of  the  hill  where  the  work  first  commenced. 
The   Miner  could  not  work  laterally  outside  of  those  boundaries   "but 
he  may  depart  from  the  original  horizontal  line  to  suit  the  dip  of  the 
stone.      The   application    of    these    rules    is    termed    squaring   the    hill." 
Fifth  Report  of  Dean  Forest  Commissioners,  p.  73. 


380  CALIFORNIA  LAW  REVIEW 

right  of  free  mining,  i.  e.,  the  right  of  the  individual  to  go  upon 
crown  lands  or  even  lands  belonging  to  others  and  upon  making  a 
discovery  of  mineral  becoming  entitled  as  a  matter  of  right  to  the 
possession  of  a  mining  claim  including  the  discovery.  But  the 
similarity  is  accounted  for  when  we  learn  that  in  framing  the  min- 
ing ordinances  of  Spain  "recourse  was  had  to  the  laws  of 
Germany."61 

Article  5  of  the  Spanish  mining  ordinances  of  1559  referred  to 
by  Gamboa  as  the  "old  ordinances,"  provides  that, 

"Whereas,  by  not  designating  the  limit  and  space  which 
the  Mines  that  shall  thus  be  discovered  are  to  have,  there  may 
result  great  confusion,  differences  and  lawsuits;  and  the  first 
discoverer  may  pretend  that  his  Mine  and  the  right  which  by 
discovery  may  belong  to  him,  cover  and  include  the  whole 
extent  and  continuation  of  the  metallic  vein,  and  that  in  the 
whole  of  such  extent  and  continuation  no  person  can  interfere 
to  prospect,  search  or  work,  from  which  may  result  great 
embarrassment  and  inpediment  to  the  discovery,  and  working 
and  development  of  said  Mines," 

therefore,  the  article  provides,  the  Mine  or  pertenencla  to 
which  a  discoverer  is  entitled  shall  have  definite  surface  boundaries, 
viz :  100  varas  long  and  50  varas  wide.62 

This  provision  would  seem  to  have  eliminated  the  exercise  of 
any  extralateral  right  and  this  is  further  borne  out  by  Article  29 
which  provided  that  if  Mines  are  staked  out  on  the  sides  of  another 
mine  whose  boundaries  are  already  defined,  because  it  appears  that 
the  vein  inclines  from  the  latter  and  may  enter  these  side  claims, 
the  Court  shall  protect  these  side  claimants  and  shall  not  permit 
the  person  who  owns  the  mine  from  which  the  ore  inclines,  to 
follow  the  vein  into  these  adjoining  claims. 

However,  Article  30  also  provided  that  if  the  boundaries  of 
the  mine  from  which  the  ore  inclines  are  not  already  defined  by 
the  official  survey  and  staking  or  if  the  ground  into  which  the  ore 
dips  is  not  already  claimed,  then  in  either  case  the  owner  of  the 
mine  "shall  be  at  liberty  to  continue  to  follow  the  said  ore  although 


61  Comentarios  a  las   Ordenanzas   de   Minas,   Gamboa   (1759),  p.   6; 
See  also  Heathfield's  translation   (1830)   p.   8.     These  Commentaries  by 
Gamboa  constitute  the  classic  work  on  mining  law  in  Spanish.     See  also 
Smirke,    Stannaries   of   Cornwall,   p.    84   note   z,    where   he    states    that, 
"The  German  system  of  jurisprudence  on  the  subject  of  mines  has  met 
with   general   acceptance   throughout  the   Continent   of   Europe,   having 
been  adopted  in  Russia;  in  the  countries  around  the  Baltic;   in  Spain; 
and  in  the  extensive  settlements  of  the  latter  country  in  America." 

62  Mining  Laws  of  Spain  &  Mexico,  Halleck  (1859),  p.  13. 


EXTRALATERAL  RIGHTS  381 

he  may  go  outside  of  his  pertenencia."63  This  latter  provision 
clearly  recognizes  a  limited  exercise  of  the  extralateral  pursuit.64 

Ordinance  XXX  of  the  Spanish  Mining  Code  of  1584,  referred 
to  by  Gamboa  as  the  "new  ordinances",  provided  that  if  the  ore 
in  any  mine  shall  be  continuous  with  the  ore  of  any  other  mine  "and 
the  two  mines  shall  become  one,  in  the  depth;  the  miner  who  shall 
have  first  sunk  and  made  his  way  into  the  other  mine,"  shall  be 
entitled  to  the  ore  until  the  owner  of  the  adjoining  mine  compels 
him  to  establish  his  boundaries.  If  it  is  found  that  he  is  outside 
of  his  true  boundaries  he  must  withdraw,  but  he  is  still  entitled  to 
the  ore  he  has  mined  from  the  other's  pertenencia,  "inasmuch  as  he 
has  acquired  a  right  to  it  by  the  care  and  diligence  used  in  work- 
ing with  more  activity  than  his  neighbor."  The  ordinance  also 
provided  that  if  a  person  took  a  pertenencia  contiguous  to  the 
mine  of  another  and  there  is  no  vein  disclosed  therein  or  if  there 
is  one  and  it  contains  no  ore,  but  the  claimant  works  "merely  with 
the  intention  of  profiting  by  the  ore  of  his  neighbor  when  he  shall 
get  within  his  boundaries"  he  acquires  no  rights  "even  though  his 
neighbor's  ore  should  take  its  course  within  his  pertenencia;  and 
our  mining  judges  and  justices  shall  determine  it  so,  and  shall  not 
allow  or  permit  such  mines,  not  being  upon  a  vein  or  ore,  to  be 
worked."65  It  is  quite  evident  that  the  foregoing  provisions  create 
and  protect  a  modified  form  of  extralateral  pursuit. 

Gamboa  comments  that  "Of  all  the  ordinances  contained  in  the 
new  code,  or  the  old  law,  there  are  none  more  difficult,  or  which 
have  been  more  frequently  the  subject  of  litigation  in  the  courts 
than  this."66  He  states  that  when  the  vein  extends  outside  the  per- 
tenencias  of  adjoining  owners  into  unclaimed  ground,  each  owner 
is  entitled  to  work  freely  through  the  virgin  ground  upon  the  dip 
of  the  vein  beyond  his  own  limits  and  whenever  the  workings  of 
rival  claimants  in  this  common  ground  meet  a  guarda-raya  or 
boundary  monument  should  be  established  beyond  which  neither 
could  pass.67  Cases  of  this  character  gave  rise  to  extensive  litiga- 
tion and  a  famous  contest  arose  in  the  mining  district  of  Guan- 


63  Halleck,  pp.  29-30. 

64  See,  Heathfield's  Gamboa,  pp.  17-43. 

65  Heathfield's  Gamboa.  pp.   14-15. 

66  Id.    pp.    17-18. 

67  Id.  p.  25.     Gamboa  notes  that  this  provision  of  the  new  ordinance 
repeals   the   policy   of   the    old   ordinance   of   confining   a   miner   to   his 
own  boundaries  but  that  this  new  provision  is  based  on  the  desire  of 
the  sovereign  to  increase  the  amount  of  his  royalties  and  also  to  reward 
industry  and  diligence,  pp.  31-32. 


382  CALIFORNIA  LAW  REVIEW 

axuato  where  Count  de  San  Pedro  del  Alamo  insisted  that  the 

underlay  (dip)  of  the  vein  which  apexed  in  his  Santa  Anita  mine 

"was  infinite  in  extent",  that  "the  vein  was  his  property, 

as  far  as  it  extended  upon  the  underlay  as  being  one  and  the 

same  vein:     and  that  as,  when  the  vein,  being  what  is  called 

a  deep  vein,  proceeds  perpendicularly  downward,   the   miner 

may  work  on  to  the  antipodes,  or  to  the  infernal  regions,  as 

Amaya  says ;  so,  if  the  vein  be  inclined,  its  whole  extent  upon 

the  underlay  is  granted  to  the  miner." 

The  proprietors  of  an  adjoining  mine  who  had  first  occupied  the 
vein  in  dispute  outside  their  boundaries  in  common  ground, 
insisted  that  the  ordinances  contemplated  such  mining  and  that 
boundary  marks  were  to  be  erected  underground  wherever  their 
workings  met.  This  latter  view  was  upheld  by  a  decree  of  the 
royal  audiencia  in  1749. 

The  miners  of  this  district  had  previously  contended  that  the 
surface  limits  alone  were  to  be  within  prescribed  boundaries  but 
insisted  that  the  miner  might  work  to  an  unlimited  extent  under- 
ground, whereupon  in  1739  an  order  was  issued  that  the  property 
of  the  vein  is  not  granted  to  an  indefinite  extent  on  the  underlay 
and  that  the  underground  limits  of  the  mine  must  correspond 
vertically  with  the  surface  boundaries.  The  only  exception  is  that 
already  noted  which  permits  a  miner  to  follow  a  vein  into  unclaimed 
ground.68 

The  early  Spanish  mining  laws  applicable  to  Peru  provided  that 
"if  the  principal  vein  of  a  mine  should  take  its  course  without 
another's  limits,  it  may  be  followed  up  without  any  impediment." 
If  a  vein  divided  before  taking  its  course  within  the  boundaries  of 
a  neighboring  mine,  the  owner  was  required  to  select  one  of  the 
branches  as  his  principal  vein  which  he  could  follow  into  his  neigh- 
bor's ground.  Gamboa  notes  that  these  regulations  conform  to  the 
practice  in  the  mines  of  Germany.89 

The  ordinance  of  1783  materially  changed  the  Spanish  mining 
law.70  Article  I  of  Title  VIII  states  that  uniformity  of  size  of 
surface  claims  cannot  be  observed  underground  and  at  the  same 
time  equality  between  claimants  preserved,  for  the  inclination  of 
the  vein  with  the  plane  of  the  horizon  makes  the  amount  of  vein 


3  Id.  pp.  26-31. 

69  Id.,    pp.    42-43.      See    also,    Gazophilatium      Regium      Perubicum, 
Escalona  (1675)   Lib.  II,  Part  II,  Cap.  I. 

70  These  ordinances  are  set  forth  in  full  in  Halleck's  Mining  Laws 
of  Spain  &  Mexico,  pp.  189-315. 


EXTRALATERAL  RIGHTS  383 

material  included  within  the  pertenencia  greater  or  smaller  and  it 
may  well  happen  that  when  a  miner  after  great  expense  and  labor, 
reaches  the  boundaries  of  his  claim  where  the  vein  begins  to  be 
rich,  an  adjoining  owner,  who  has  placed  himself  at  that  point  with 
more  cunning  than  labor,  may  compel  him  to  stop  working  further 
"so  that  from  this  arises  one  of  the  greatest  and  most  frequent 
causes  of  litigation  and  dissension  among  miners."71  As  a  result, 
the  new  code  provided  that  each  miner  is  entitled  to  200  Castillian 
varas  which  are  called  de  medir  (long  or  running  measure)  along 
the,  thread,  direction  or  course  of  the  vein  taken  on  a  level.  To 
square  the  claim  a  rectangle  was  formed  by  taking  100  varas  on 
each  or  either  side  of  the  vein,  if  the  vein  were  vertical,  and  this 
width  increased  as  the  dip  of  the  vein  might  flatten  till  the  claim 
attained  a  maximum  width  of  200  varas  for  veins  dipping  at  an 
angle  of  45°  or  less.  The  ordinances  voiced  the  opinion  that  by 
the  time  the  vertical  boundaries  of  the  claim  were  reached  the  vein 
will  have  been  considerably  exhausted. 

Article  14  referring  to  the  permission  granted  under  the  former 
law  of  1584  to  enter  another  mine  and  continue  following  the  vein 
until  the  owner  of  the  other  mine  can  extend  his  workings  so  as 
to  stop  the  adverse  entry,  states  that  it  is  "the  most  fruitful  cause 
of  the  bitterest  law  suits,  dissensions  and  disturbances  among 
miners"  and  the  adverse  entry  occurs  more  often  through  fraud 
or  accident  rather  than  as  the  result  of  merit  or  industry.  There- 
fore, entering  the  pertenencia  of  another  is  prohibited. 

Article  15  provides  for  an  exception,  however,  and  if  a  miner 
pursuing  his  working  fairly  and  following  his  vein  reaches  the 
pertenencia  of  another  or  discovers  there  a  vein  undiscovered  by 
the  adjoining  owner,  he  shall  be  obliged  to  give  such  adjoining 
owner  immediate  notice  and  thereafter  share  equally  with  him  all 
that  he  may  extract  from  the  adjoining  pertenencia  and  for  failure 
to  give  such  notice  of  invasion  of  the  other's  territory  he  lost  all 
right  to  the  ore  taken  out  and  also  paid  double  its  value  as  a 
penalty.  The  other  owner  could  stop  this  invasion  at  any  point 
that  his  own  workings  encountered  the  invader's. 

Article  16  continued  the  right  to  follow  the  vein  into  unclaimed 


71  In  the  light  of  the  present  day  criticism  of  the  extralateral  right, 
it  is  amusing  to  note  that  'this  ordinance  attributes  excessive  litigation 
to  the  inflexible  vertical  boundary  system.  Dissatisfaction  with  existing 
conditions  and  enthusiastic  conviction  that  a  change  will  result  in 
complete  relief,  is  a  common  characteristic  which  is  not  confined  to 
the  present  day. 


384  CALIFORNIA  LAW  REVIEW 

adjoining  territory  but  compelled  the  denouncing  of  a  new  adjoin- 
ing pertenencia  covering  the  vein. 

Article  17  confirmed  each  owner  to  that  portion  of  the  vein 
included  within  his  boundaries  and  specifically  denied  the  right 
either  to  the  discoverer  of  the  vein  or  to  the  owner  of  the  apex  to 
"claim  it  in  its  whole  extent,  or  wherever  it  may  happen  to  be." 

This  was  the  mining  law  in  force  in  Mexico  from  1783  up  to 
the  time  of  the  discovery  of  gold  in  California.  Raymond72  makes 
the  comment  that 

"this  law  is  remarkable  for  an  attempt  to  reconcile  the  two 
systems  of  square  and  inclined  locations  by  an  elaborate  grad- 
uation of  the  size  and  shape  of  the  surface  claim  according  to 
the  dip  of  the  vein." 

He  points  out  the  impossibility  of  administering  such  a  law  in 
accordance  with  the  facts,  for  an  opening  10  yards  deep  was 
required  to  determine  the  dip  of  the  vein  which  was  then  errone- 
ously assumed  to  follow  a  uniform  course  and  dip.73 

The  ordinances  of  1783  have  long  since  been  superseded  by 
mining  codes  which  have  abolished  the  graduated  forms  of  claims. 

Italy  (Neapolitan  States).  Article  15  of  the  Act  of  1826  per- 
mits the  worker  of  a  mine  which  has  been  opened  on  one  property 
to  follow  it  into  an  adjoining  property  without  the  owner  of  the 
latter  being  able  to  prevent  him;  but  in  this  case  the  latter  has  a 
right  to  be  compensated,  such  compensation  to  be  mutually  agreed 
on  or  fixed  by  the  arbitration  of  a  judge.  Apparently  this  right 
was  only  applicable  to  mines  worked  under  private  grants.74 

Belgium.  The  mining  laws  of  Belgium  are  based  on  the  French 
code.  In  Liege  adventurers  appear  to  have  had  rights  under  cer- 
tain circumstances  of  following  seams  and  beds.75 

Australia.  The  local  court  regulations  of  Maldon  of  March  6, 
1857,  provided  that  the  width  of  a  claim  should  be  100  feet  on  each 
side  of  the  line  of  the  reef  with  the  dips  and  angles  of  all  reefs 


72  Mineral   Resources    (1869),  p.   196. 

"Id.,   p.    198. 

™  Walmesley,  Mining  Laws  of  the  World  (1894)  p.  106.  The 
author  makes  the  comment  that  this  "right  seems  to  be  analogous  to 
that  which  is  recognized  by  the  law  of  the  United  States  of  America." 
The  mining  laws  of  the  various  states  of  which  Italy  is  composed  vary 
materially,  so  each  must  be  studied  by  itself.  In  Piedmont  the  resem- 
blance to  the  mining  law  of  France  is  marked,  while  the  Austro-Hun- 
garian  influence,  which  is  essentially  Germanic  in  character,  is  evident 
in  Venetia.  Walmesley,  pp.  95,  109. 

75  Walmesley,   p.    120.     See   also    De    Fooz. 


EXTRALATERAL  RIGHTS  385 

within   the  boundary  and   the   right  to   follow   them   to  whatever 
distance  they  might  dip.76 

In  New  South  Wales  the  mining  regulations  of  August  5,  1858, 
provided  that: 

"Miners  occupying  any  portion  of  a  quartz  reef  or  vein 
shall  be  entitled  to  follow  and  work  it  in  any  direction  that 

such  reef  or  vein  may  take Provided  ....  that  when 

any  reef,  vein  or  bed  of  quartz  shall  lie  nearly  horizontal,  or 
at  a  less  angle  with  the  horizon  than  20°, 77  the  holder  of  any 
claim  shall  be  only  entitled  to  follow  such  reef,  vein,  or  bed  of 
quartz  in  the  direction  of  the  dip,  for  a  distance  not  exceeding 
50  yards  from  the  point  where  they  commence  to  sink  in 
search  of  any  such  reef,  vein,  or  bed  of  quartz/'78 

These  extralateral  provisions  were  probably  patterned  after  the 
miners'  customs  of  California,  since  California  miners  are  known 
to  have  taken  a  leading  part  in  this  early  mining  in  Australia.  The 
use  of  the  terms  "dip  and  angles"  is  similar  to  language  employed 
here  by  the  early  miners.  Where  the  vein  was  inclined,  the  limits 
of  a  claim  were  determined  by  establishing  a  base  line  passed 
through  the  "peg"  or  discovery  point  on  the  apex  of  the  vein  and 
"another  point  visible  and  as  distant  as  possible  on  the  known  line 
of  the  reef"  or  in  case  the  position  of  the  reef  (vein)  was  not 
sufficiently  known,  an  arbitrary  point  was  selected  and  from  this 
base  line  right  angled  lines  were  extended  out  in  the  direction  of 
the  dip  of  the  vein.  This  method  of  denning  boundaries  within 
which  the  miner  could  work  is  almost  identical  with  the  plan  which 
was  later  adopted  on  the  Comstock  lode  for  the  settlement  of  dis- 
putes over  boundaries.79 

In  1862  the  regulations  were  altered  so  that  a  claim  had  a  width 
of  100  yards  and  the  owner  was  entitled  to  all  veins  found  therein, 


76  Law  of  Gold  Mining  in  Australia  and  New  Zealand,  Armstrong 
(1901). 

77  If    this    provision    was    not    suggested    by    the    Germanic    extra- 
lateral  law,  it  is  at  least  the  strongest  kind  of  circumstantial  evidence, 
for  in  most  of  the  mining  districts  of  Germany  veins  that  dipped  at  an 
angle   of   less   than  20°   were   termed   Flotze   and   no   extralateral   right 
could   be    acquired    to    such    deposits. 

78  See,  Mining  Laws  of  Australia  and  New  Zealand,  Veatch   (1910). 

79  A  very  interesting  volume  entitled,  "The  Law  of  the  Apex,"  by 
Kenny  has  recently  appeared,  (1914),  in  which  the  author  advocates  the 
adoption  of  a  similar  plan  of  measurement  in  the  United  States  in  place 
of  the  present  system  of  parallel  end  lines  under  the  Act  of  1872.    There 
is  considerable  reason  underlying  the  suggestion,  for  it  doubtless  affords 
a    more    logical    division    of    the    vein    than    any    other    system    which 
could  be  devised,  but  the  conception  is  based  on  ideal  vein  conditions 
and  does  not  take  into  consideration  geological  complexities. 


386  CALIFORNIA  LAW  REVIEW  , 

instead  of  one  vein  only  as  under  the  former  act,  and  could  follow 
any  reef  into  unoccupied  ground.80  In  1866  the  system  of  vertical 
boundaries  was  adopted  because  the  extralateral  system  was 
"found  to  lead  to  disputes/' 

In  other  parts  of  Australia  the  locator  along  the  apex  of  the 
vein  had  a  preferential  right  to  acquire  "frontage  claims"  overlying 
the  dip.  This  is  analogous  to  the  extension  of  the  mine  perimeter 
in  the  direction  of  the  dip  under  the  French  law. 

In  Western  Australia  under  existing  law,  individual  leases  are 
granted  of  areas  necessary  to  work  the  reef  to  a  depth  of  3000 
feet  and  if  the  mineral  is  gold  the  length  along  the  outcrop  of  the 
reef  shall  not  exceed  66  chains,  and  if  mineral  other  than  gold  the 
distance  along  the  outcrop  shall  not  exceed  90  chains.  This  right 
to  mine  in  depth  is  virtually  equivalent  to  the  exercise  of  an  extra- 
lateral  right. 

Rhodesia.  All  property  in  minerals  and  mining  rights  in 
Rhodesia  has  been  granted  by  the  Crown  to  the  British  South 
Africa  Company.  The  system  of  mining  law  in  force  there  was 
adopted  in  1903  and  is  largely  copied  from  the  American  law.81  A 
"reef  claim"  is  a  parallelogram  150  feet  in  length  along  the  course 
of  the  reef  with  a  width  of  600  feet  at  right  angles  to  the  length. 
A  "block"  is  a  group  of  not  to  exceed  ten  contiguous  reef  claims 
thus  forming  a  parallelogram  1500  by  600  feet,  the  exact  size  of  a 
lode  claim  under  American  law.  The  "extralateral  right"  is  defined 
in  the  ordinance  to  be  "the  right  of  following  a  reef  on  its  dip  in 
any  block  beyond  the  limits  of  the  vertical  block."  The  "course 
of  a  reef"  is  defined  to  be  a  line  on  the  surface  marking  the  inter- 
section of  the  center  of  the  reef  with  such  surface.  If  the  reef 
were  "blind,"  i.  e.,  situated  below  the  surface  the  points  where  it 
approached  closest  to  the  surface  were  projected  vertically  upward. 
This  is  the  "course  of  the  apex"  or  "lode  line"  of  the  American  law. 
The  miner  had  the 

"extralateral  right  of  pursuit  of  such  portions  of  his  discovery 

reef  on  its  dip  outside  the  limits  of  his  vertical  block  as  are 

comprised  between   vertical   planes   indefinitely   extended   and 

passing  through  the  end  lines  of  his  block."8 

Canada  (British  Columbia).     The  various  provinces  of  Canada 

have   adopted   the   vertical   boundary   system   of    mining   law   but 

80  Here    we    have    a    provision    similar    to    those    contained    in    the 
Spanish  Mining  Codes  already  noted. 

81  Mining  Law  of  the  British  Empire,  Alford  (1906),  p.  197. 

82  The  striking  similarity  of  this  law  to  the  American  Mining  Law 
is   evident.     The  trial  of  the  first  important  case  involving  the   extra- 


EXTRALATERAL  RIGHTS  387 

British  Columbia  in  1891  passed  a  mineral  act,  section  31  of  which 
provided  that: 

"The    lawful    holders    of    mineral    claims    shall    have    the 

exclusive  right  of  possession  of  all  the  surface  included  within 

the  lines  of  their  locations,  and  of  all  veins,  lodes  and  ledges 

throughout  their  entire  depth,  the  top  or  apex  of  which  lies 

inside   of   such   surface   lines   extended   downward   vertically, 

although  such  veins,  lodes  or  ledges  may  so  far  depart  from  a 

perpendicular  in  their  course  downward  as  to  extend  outside 

the  vertical  side  lines  of  such  surface  locations,"  etc.83 

The  section  also  provided  that  if  a  location  were  laid  crosswise 

of  a  vein  instead  of  along  its  course  the  locator  secured  only  so 

much  of  the  vein  or  lode  as  it  crossed  and  the  side  lines  became 

the  end  lines  for  the  purpose  of  defining  extralateral   rights.     A 

location  was  deemed  to  be  laid  crosswise  when  the  angle  made  by 

the  center  line  of  the  location  and  the  general  course  of  the  vein 

was  greater  than  45  degrees. 

This  section  of  the  Act  was  repealed  by  Section  2  of  the 
Amendment  Act  of  1892  which  provided,8*  that  "The  owner  of  a 
mineral  claim  shall  be  entitled  to  all  minerals  which  may  lie  within 
his  claim,  but  he  shall  not  be  entitled  to  mine  outside  the  boundary 
lines  of  his  claim  continued  vertically  downward."  Subsection  b, 
preserves  rights  of  locations  under  the  former  acts.85 

As  a  result  of  this  brief  period  during  which  the  extralateral 
right  was  sanctioned,  rights  to  a  number  of  such  mining  claims 
became  vested.  The  British  Columbia  reports  indicate  that  several 
cases  have  arisen  where  these  rights  are  involved. 

Central  and  South  America.  Many  of  these  countries,  notably 
Uruguay,  Venezuela,  Nicaragua,  and  Honduras,  have  features 
copied  from  the  Spanish  law,  either  permitting  a  claimant  to  mine 
on  the  vein  into  the  subsurface  of  his  neighbor  and  accounting 
to  the  latter  for  one  half  of  the  net  proceeds  of  all  ore  extracted 

lateral  right  feature  of  Rhodesian  mining  law  to  be  brought  to  England 
was  recently  concluded  in  London.  The  Amalgamated  Properties  of 
Rhodesia  brought  suit  against  the  Globe  &  Phoenix  Gold  Mining 
Company  Ltd.  for  the  recovery  of  approximately  $1,000,000,  alleged 
to  have  been  wrongfully  extracted  from  the  John  Bull  claims.  The 
case  turned  largely  on  geological  facts  and  the  usual  array  of  expert 
talent  characteristic  of  such  cases  was  present.  The  writer  is  indebted 
to  Mr.  H.  W.  Turner  for  the  clippings  of  the  London  papers  reporting 
the  proceedings. 

83  This  is  identical  in  language  with  the  Act  of  1872,  §  2322  U.  S. 
Rev.  Stats.,  from  which  it  was  unquestionably  taken.  The  writer  is  informed 
that  British  Columbia  first  adopted  the  extralateral  right  in  1882. 

84  §15,  subd.  a. 

85  Centre    Star    Mining    Company   v.    Iron    Mask    Mining    Company 
(1898),  6  British  Columbia  Cases,  355;  Martin,  Min.  Cases  267  note,  and 
pp.  629-630,  681-682. 


388  CALIFORNIA  LAW  REVIEW 

but  subject  to  being  stopped  from  further  working  whenever  the 
neighbor  reaches  the  trespass  workings,  or  permitting  a  claimant 
to  enter  the  subsurface  of  abandoned  or  unclaimed  subsurface  with 
the  right  to  denounce  an  adjoining  claim  in  such  direction. 

Of  greater  interest  are  the  Mining  Regulations  of  British 
Guiana  of  1887  which  give  the  right  to  follow  veins  throughout 
their  entire  depth  where  the  apex  is  included  within  the  surface 
boundaries  of  the  claim  but  the  right  of  such  outside  pursuit  is 
confined  between  vertical  end  line  planes.  There  was  an  addi- 
tional privilege  putting  a  premium  on  the  one  who  first  com- 
mences working  on  the  vein  extralaterally.  Our  federal  mining 
Act  of  1872  is  clearly  responsible  for  the  main  extralateral 
feature.85* 

There  are  doubtless  other  parts  of  the  world  where  the  extra- 
lateral  right  or  some  modification  of  it  has  at  some  time  been 
exercised.86 

The  attempt  has  been  made  to  include  in  this  article  all  the 
examples  of  the  exercise  of  such  a  right  that  have  come  to  the 
writer's  attention.  In  many  of  the  other  countries  such  as  China, 
Russia,  etc.,  it  has  been  quite  customary  to  secure  a  concession  to 
a  mine  which  includes  the  entire  vein  and  there  would  be  no  neces- 
sity for  adjusting  rights  between  adjoining  owners.  Sufficient 
examples  have  been  presented  to  indicate  that  there  has  been  -a 
powerful  tendency  at  work  based  on  fundamental  reason  and 
natural  law  to  segregate  the  mineral  bearing  vein  from  the  surface, 
and  to  grant  the  vein  to  the  miner.  Instead  of  confining  him  to 
inflexible  surface  boundaries  extended  downward  vertically,  the 
tendency  has  been  to  make  these  boundaries  more  elastic  so  that  he 
could,  in  the  interest  of  economy  and  justice,  follow  down  on  his  vein, 
which  is  the  principal  thing  sought,  and  which  has  no  logical  rela- 
tion to  the  overlying  surface.  The  surface  ownership  was  usually 
segregated  from  the  underlying  mineral  and  vested  in  another  who 
might  be  devoting  it  to  agricultural  or  other  pursuits.  This  sever- 
ance is  in  line  with  the  highest  economic  use  of  natural  resources 
and  embodies  the  modern  conception  of  conservation.  The  surface 
was  frequently  used  for  convenience  in  marking  out  a  perimeter 
merely  to  place  a  limit  on  underground  workings,  but  the  perimeter 

ssa  "Mines  and  Mining  Laws  of  Latin  America,  published  by  the 
Bureau  of  the  American  Republics,  April  1892. 

86  Mr.  Horace  V.  Winchell  mentions  Sweden  as  one  of  the  countries 
where  the  extralateral  right  was  operative  for  a  time.  Report  of 
Meeting  of  the  Mining  &  Metallurgical  Society  of  America,  December 
1915.  Reprint,  Senate  Document  No.  233,  64th  Congress  1st  Session, 
p.  57. 


EXTRALATERAL  RIGHTS  437 

could  be  varied  or  extended  according  to  the  nature  of  the  deposit, 
and  as  underground  development  might  indicate  was  most  equitable 
and  economic.  Frontage  claims  also  accomplished  the  same  object. 

The  pure  type  of  extralateral  right  has  unquestionably  given 
rise  to  a  vast  amount  of  litigation,  and  this  fact  has  resulted  in  its 
abolition  in  most  countries  where  it  formerly  existed. 

In  a  subsequent  article  the  writer  plans  to  trace  the  growth  and 
operation  of  the  extralateral  right  in  the  United  States  and  to  call 
attention  to  some  serious  problems  which  must  be  solved  in  the 
event  that  it  is  abolished.  Win.  E.  Colby. 

Berkeley,   California. 

Volume  IV.  SEPTEMBER,    1916  Number  6 

II.     THE  ORIGIN  AND  DEVELOPMENT  OF  THE  EXTRALATERAL 
RIGHT  IN  THE  UNITED  STATES. 

THE  discovery  of  gold  in  California  in  January  of  1848, 
brought  about  the  birth  of  a  distinctive  American  mining 
law.  Theretofore,  no  general  mining  law  was  in  force  in 
the  United  States  and  the  few  Acts  of  Congress  on  the  subject 
were  local  in  character,  applying  only  to  the  lead  and  copper  de- 
posits of  the  Middle  West,  and  were  not  based  on  any  well  defined 
policy.  The  general  tendency  was  to  place  mineral  lands  on  the 
same  basis  as  agricultural  lands.1  There  was  no  trace  of  any  exer- 
cise of  an  extralateral  right  to  be  found  in  any  of  these  early  laws. 
The  news  of  the  finding  of  the  fabulous  gold  fields  of  Cali- 
fornia spread  around  the  world  like  wildfire  and  miners  from  every 
part  of  the  globe  flocked  to  the  new  Eldorado  to  share  in  its 
treasure.  Miners  came  from  the  lead  mines  of  Illinois  and  Wis- 
consin, from  the  copper  mines  of  Michigan,  from  the  gold  mines 
of  Virginia,  Georgia  and  the  Carolinas,  from  the  tin  mines  of  Corn- 
wall, the  lead  mines  of  Derbyshire,  the  silver  and  copper  mines  of 
Germany,  the  silver  and  gold  mines  of  Mexico  and  Peru,  and  in 
fact  from  every  known  mining  community.  They  brought  their 
varied  experience  and  were  joined  by  countless  others  who  had  no 
previous  mining  experience  of  any  sort.2  It  must  be  borne  in  mind 
that  no  general  mining  law  was  in  force  in  this  new  territory. 
Colonel  Mason,  the  military  governor  of  California  in  1848,  issued 

1  Those  who  are  interested  in  the  early  history  of  mining  law  in  the 
United  States  will  find  an  excellent  presentation  in  Lindley  on  Mines,   (3rd 
ed.),  §§  28-36.    See  also  Donaldson,  The  Public  Domain   (1883),  pp.  306-309. 

2  The   fascinating  history  of  the  days  of  '49  is  outlined  in  Lindley  on 
Mines,  (3rd  ed.)  chapter  3,  §§40-40,  and  Crane,  Treatise  on  Gold  and  Silver, 
pp.  54-62.     Also  see  Browne,  Mineral  Resources,  1867,  pp.  15-16,  38. 


438  CALIFORNIA  LAW  REVIEW 

a  proclamation  abolishing  "the  Mexican  laws  and  customs  now 
prevailing  in  California  relative  to  the  denouncement  of  mines."  3 
His  action  was  unnecessary,  however,  since  the  Supreme  Court  of 
the  United  States  later  held  *  that  the  Mexican  law  relating  to  the 
acquisition  of  mining  property  was  not  operative  in  California 
because  of  the  absence  of  any  mining  officials  required  by  the  Mex- 
ican law. 

This  situation  is  important  to  bear  in  mind,  for  one  would 
naturally  suppose  that  the  mining  laws  which  developed  in  this 
territory  would  have  borne  the  distinct  impress  of  the  Mexican  and 
Spanish  mining  laws  which  were,  theoretically,  at  least,  in  force 
throughout  the  greater  part  of  the  West  while  it  remained  under 
the  sovereignty  of  Mexico.  As  a  matter  of  fact,  with  the  excep- 
tion of  a  small  amount  of  placer  mining  for  gold  in  the  vicinity  of 
Los  Angeles  5  and  mining  for  quicksilver  at  New  Almaden,6  Santa 
Clara  County,  there  was  no  mining  of  any  noteworthy  character 
being  carried  on  in  this  vast  and  largely  unexplored  domain.  This 
accounts  for  the  absence  of  Mexican  mining  deputations  with 
whom  mining  claims  were  required  to  be  registered  under  Mexi- 
can law. 

With  the  Mexican  law  of  mines  inoperative,  with  no  existing 
congressional  legislation  on  mines  applicable,  with  state  govern- 
ment in  the  West  either  non-existent  or  in  its  infancy,  the  field  was 
open  for  the  adoption  of  that  form  of  mining  law  which  might  best 
fit  the  new  conditions.  As  already  noted,  there  had  been  no 
federal  mining  law  of  any  consequence  in  the  older  portions  of  the 
United  States  which  might  serve  as  a  pattern.  The  common  law 
of  England  which  was  in  force  in  most  of  the  Eastern  states  had 
little  bearing  on  mining  problems.  As  a  consequence,  those  who 
came  from  other  parts  of  the  United  States,  and  who  constituted 
the  major  part  of  the  army  of  gold  seekers,7  and  even  those  who 
had  previous  experience  in  the  mines  of  the  Middle  West  and 
Georgia,  brought  with  them  little  knowledge  of  a  suitable  mining 


8  Yale,  Mining  Claims  (1867),  p.  17. 

*  United  States  v.  Castellero  (1862),  67  U.  S.  17-371,  17  L.  Ed.  360. 

5  Browne,   Mineral   Resources    (1867),  pp.   13-14,   38;   Crane,   Gold   and 
Silver,  p.  54. 

6  United  States  v.  Castellero,  supra,  n.  4. 

7Josiah  Royce  says  "The  effective  majority  in  all  the  chief  communi- 
ties was  formed  of  Americans.  .  .  ."  Royce,  California,  p.  225.  They  were 
"educated,  intelligent,  civilized  and  elevated  men  of  the  best  classes  of 
society."  California  Herald  (New  York)  Jan.  16,  1849. 


EXTRALATERAL  RIGHTS  439 

code.  There  were,  however,  thrown  into  this  melting  pot  of  na- 
tions, foreigners  who  arrived  with  a  knowledge  of  the  mining  laws 
in  force  in  other  parts  of  the  world.  Germans,  Cornishmen,  Mex- 
icans, Peruvians,  came  from  countries  in  which  complete  mining 
codes  were  operative.  It  would  be  strange  indeed  if  these  experi- 
enced miners  did  not  take  an  active  part  in  the  councils  which 
followed  and  to  some  degree,  at  least,  influence  the  shaping  of  the 
laws  which  emerged  from  this  chaotic  condition. 

Going  out  into  the  wild  and  uninhabited  mountains  and  canons 
of  the  Sierras,  these  pioneers  found  no  laws  in  force  or  which 
could  be  made  applicable  to  the  new  conditions  they  had  to  meet. 
The  necessities  of  the  situation  and  the  absence  of  any  effective 
sovereign  authority  to  impose  laws  and  enforce  obedience  on  this 
army  of  gold  seekers,  who  suddenly  overran  the  rugged  slopes  of 
the  Sierras  like  a  swarm  of  ants,  brought  about  one  of  the  most 
remarkable  and  purely  democratic  governmental  institutions  in  the 
history  of  the  world.  Wherever  there  was  a  mining  center  of  any 
importance  a  meeting  was  called  and  the  miners  of  the  vicinity 
assembled,  organized  a  mining  district,  elected  officers  and  adopted 
a  brief  and  usually  rather  crude  code  of  laws  by  which  the  district 
was  to  be  governed.  These  district  rules  and  regulations  consti- 
tuted the  miners*  laws  and  customs  8  and  were  mainly  devoted  to 
the  regulation  of  mining,  though  in  the  early  days  before  the  State 
had  assumed  the  effective  administration  of  justice,  these  laws 
frequently  dealt  with  other  civil  rights  and  the  punishment  of 
crimes.9 


8  "A  special  kind  of  law,   a  sort  of  common  law  of  the  miners,   the 
offspring   of    a   nation's   irrepressible  march, — lawless   in    some    senses,   yet 
clothed  with  dignity  by  a  conception  of  the  immense  social  results  mingled 
with  the  fortunes  of  these  bold  investigators, — has  sprung  up  on  the  Pa- 
cific  Coast,   and   presents   in   the   value   of   a    'mining   right'    a    novel    and 
peculiar  question  of  jurisdiction  for  this  Court."    Sparrow  v.  Strong  (1865), 
70  U.  S.  97,  18  L.  Ed.  49. 

9  The    following    extracts    are    taken    from    editorials    of    the    Evening 
Picayune  of  San  Francisco : 

"The  rules  by  which  the  rights  of  discoverers  are  defined  and  pro- 
tected among  those  concerned  in  mining  operations,  have  thus  far,  we 
believe,  been  as  much  respected  as  legislative  enactments  would  be.  (De- 
cember 11,  1850). 

"The  fact  was,  and  still  is,  in  respect  to  the  great  mass  of  American 
citizens  engaged  in  practical  mining,  that  they  have  very  little  care  for 
the  creation,  support,  or  character  of  any  government  in  the  State.  The 
rules  of  their  mutual  adoption,  by  which  their  rights  of  property  are  pro- 
tected, answer  quite  well  the  purposes  for  which  they  would  desire  any 
legislation,  and  their  own  mode  of  securing  justice  under  those  rules,  is 
probably  more  instant  and  certain  than  such  as  would  be  prescribed  by 


440  CALIFORNIA  LAW  REVIEW 

It  would  be  out  of  place  here  to  discuss  in  detail  the  nature 
of  these  interesting  rules.10 

For  present  purposes  it  is  sufficient  to  quote  the  following 
classic  and  concise  statement  of  the  situation  by  the  Supreme  Court 
of  the  United  States  speaking  through  Justice  Field : 1X 

"The  discovery  of  gold  in  California  was  followed,  as  is 
well  known,  by  an  immense  immigration  into  the  State,  which 
increased  its  population  within  three  or  four  years  from  a  few 
thousand  to  several  hundred  thousand.  The  lands  in  which 
the  precious  metals  were  found  belonged  to  the  United  States, 
and  were  unsurveyed,  and  not  open,  by  law,  to  occupation  and 
settlement.  Little  was  known  of  them  further  than  that  they 
were  situated  in  the  Sierra  Nevada  mountains.  Into  these 
mountains  the  emigrants  in  vast  numbers  penetrated,  occupy- 
ing the  ravines,  gulches  and  canons,  and  probing  the  earth  in 
all  directions  for  the  precious  metals.  Wherever  they  went, 
they  carried  with  them  that  love  of  order  and  system  and  of 
fair  dealing  which  are  the  prominent  characteristics  of  our 
people.  In  every  district  which  they  occupied  they  framed 
certain  rules  for  their  government,  by  which  the  extent  of 
ground  they  could  severally  hold  for  mining  was  designated, 
their  possessory  right  to  such  ground  secured  and  enforced, 
and  contests  between  them  either  avoided  or  determined. 
These  rules  bore  a  marked  similarity,  varying  in  the  several 
districts  only  according  to  the  extent  and  character  of  the 
mines;  distinct  provisions  being  made  for  different  kinds  of 
mining,  such  as  placer  mining,  quartz  mining,  and  mining  in 
drifts  or  tunnels.  They  all  recognized  discovery,  followed  by 
appropriation,  as  the  foundation  of  the  possessor's  title,  and 
development  by  working  as  the  condition  of  its  retention.  And 
they  were  so  framed  as  to  secure  to  all  comers,  within  prac- 
ticable limits,  absolute  equality  of  right  and  privilege  in  work- 
ing the  mines.  Nothing  but  such  equality  would  have  been 


laws   of   the   legislature.  .  .  ."      (December   14,    1850). 

".  .  .  .  for  the  present  we  know  of  no  class  of  people  who  are  better 
able  to  regulate  the  disposition  of  the  mineral  lands  of  California  than  the 
miners  themselves,  at  any  rate  they  have  done  very  well  so  far."  (Janu- 
ary 31,  1851). 

10  Those  who  are  interested  in  the  subject  will  find  these  miner's  laws 
elaborately  treated  in  Lindley  on  Mines,  Chapter  3 ;  Browne,  Mineral  Re- 
sources, (1867),  pp.  226-264;  Yale,  Title  to  Mining  Claims,  etc.,  (1867),  pp. 
58-88;  Bancroft's  Handbook  of  Mining  (1861),  pp.  189-203;  Morton  v. 
Solambo  M.  Co.  (1864),  26  Cal.  527,  532-533;  Shinn,  Mining  Camps  (1885)  ; 
Royce,  California  (1886).  A  veritable  mine  of  original  information  is  to 
be  found  in  Vol.  XIV  of  the  Tenth  U.  S.  Census  (1885),  which  gives 
in  full  the  miner's  rules  of  most  of  the  districts  of  the  West.  This  invalu- 
able compilation  was  made  through  the  wise  foresight  of  Clarence  King, 
who  was  prominently  identified  with  the  mining  industry. 

njennison  v.  Kirk  (1878),  98  U.  S.  453,  457-458,  25  L.  Ed.  240. 


EXTRALATERAL  RIGHTS  441 

tolerated  by  the  miners,  who  were  emphatically  the  law- 
makers, as  respects  mining,  upon  the  public  lands  in  the  State. 
The  first  appropriator  was  everywhere  held  to  have,  within 
certain  well-defined  limits,  a  better  right  than  others  to  the 
claims  taken  up;  and  in  all  controversies,  except  as  against  the 
government,  he  was  regarded  as  the  original  owner,  from 
whom  title  was  to  be  traced." 

The  Supreme  Court  of  California  had  earlier  commented  on 
this  unique  condition,  saying :  12 

"Courts  are  bound  to  take  notice  of  the  political  and  social 
condition  of  the  country,  which  they  judicially  rule.  In  this 
State  the  larger  part  of  the  territory  consists  of  mineral  lands, 
nearly  the  whole  of  which  are  the  property  of  the  public.  No 
right  or  intent  of  disposition  of  these  lands  has  been  shown 
either  by  the  United  States  or  the  State  governments,  and 
with  the  exception  of  certain  State  regulations,  very  limited 
in  their  character,  a  system  has  been  permitted  to  grow  up 
by  the  voluntary  action  and  assent  of  the  population,  whose 
free  and  unrestrained  occupation  of  the  mineral  region  has 
been  tacitly  assented  to  by  the  one  government,  and  heartily 
encouraged  by  the  expressed  legislative  policy  of  the  other.  If 
there  are,  as  must  be  admitted,  many  things  connected  with 
this  system,  which  are  crude  and  undigested,  and  subject  to 
fluctuation  and  dispute,  there  are  still  some  which  a  universal 
sense  of  necessity  and  propriety  have  so  firmly  fixed  as  that 
they  have  come  to  be  looked  upon  as  having  the  force  and 
effect  of  res  judicata.  Among  these  the  most  important  are 
the  rights  of  miners  to  be  protected  in  the  possession  of  their 
selected  localities,  and  the  rights  of  those  who,  by  prior  ap- 
propriation, have  taken  the  waters  from  their  natural  beds, 
and  by  costly  artificial  works  have  conducted  them  for  miles 
over  mountains  and  ravines,  to  supply  the  necessities  of  gold 
diggers,  and  without  which  the  most  important  interests  of 
the  mineral  region  would  remain  without  development.  So 
fully  recognized  have  become  these  rights  that  without  any 
specific  legislation  conferring  or  confirming  them,  they  are 
alluded  to  and  spoken  of  in  various  acts  of  the  Legislature  in 
the  same  manner  as  if  they  were  rights  which  had  been 
vested  by  the  most  distinct  expression  of  the  will  of  the  law- 
makers. .  .  ." 

The  main  objects  of  the  regulations  were  to  fix  the  boundaries 
of  the  districts,  the  size  of  the  claims,  the  manner  in  which  the 
claims  were  to  be  marked  and  recorded,  the  amount  of  work  which 
was  required  to  keep  the  title  alive  and  the  circumstances  under 


i2Irwin  v.  Phillips  (1855),  5  Cal.  140,  146. 


442  CALIFORNIA  LAW  REVIEW 

which  the  claim  was  to  be  considered  as  abandoned  or  forfeited.18 

As  far  as  the  regulation  of  mining  was  concerned  they  became 
"the  law  of  the  land."  Their  observance  was  general  and  the 
Legislature  of  the  State  of  California  recognized  them  as  being  of 
controlling  effect  in  the  absence  of  congressional  or  state  action.14 

Other  Western  states  and  territories  also  gave  them  similar 
recognition  and  the  courts  upheld  them  as  being  of  controlling 
force.15 

Water  rights  necessary  for  working  placer  claims  also  became 
a  subject  of  considerable  importance  as  the  placer  mining  in- 
creased and  many  districts  had  rules  governing  the  acquisition  of 
these  rights.16 

The  early  mining,  following  the  discovery  of  gold,  was,  for  a 
considerable  time,  confined  to  the  placers.  There  was  an  abund- 
ance of  virgin  ground  and  the  gold  in  the  form  of  dust  or  nuggets 
when  separated  from  the  gravels  required  no  further  treatment  but 
became  the  medium  of  exchange  and  to  a  great  extent  took  the 
place  of  coin.  On  the  other  hand,  quartz  mining  involved  the 
more  difficult  extraction  of  vein  material  and  treatment  of  the  ores 
when  extracted.  A  quartz  mine  took  time  to  develop  in  order  to 
determine  whether  the  quantity  and  grade  of  the  ore  available 
justified  the  great  expense  of  erecting  a  mill.  The  mining  regions 
were  remote  from  centers  of  civilization  and  the  lack  of  facilities 
for  making  mining  machinery  and  the  prohibitive  cost  of  transport- 
ing it  to  the  mines  when  made,  also  tended  to  delay  quartz  mining. 
This  accounts  for  the  fact  that  many  months  elapsed  before  it 
assumed  any  considerable  importance. 


13  Browne,    Mineral    Resources    (1867),    p.    226;    Yale,    Mining    Claims 
(1867),  p.  61. 

14  Section  621   of  the  California  Practice  Act   of   1851   provided  that: 
"In  actions  respecting  'mining  claims',  proof  shall  be  admitted  of  the  cus- 
toms, usages  or  regulations  established  and  in  force  at  the  bar  or  diggings 
embracing  such  claims ;  and  such  customs,  usages  or  regulations,  when  not 
in  conflict  with  the  Constitution  and  laws  of  this  State,  shall   govern  the 
decision  of  the  action." 

15  "A   series  of  wise  judicial  decisions  moulded  these  regulations   and 
customs  into  a  comprehensive  system  of  common  law,   embracing  not  only 
mining  law   (properly  speaking),  but  also  regulating  the  use  of  water  for 
mining  purposes.     The  same  system  has  spread  over  all  the  interior  states 
and  territories  where  mines  have  been   found,  as   far  east  as  the  Missouri 
river."     (Remarks  of  Senator  Stewart  before  the  U.   S.   Senate,   June   18, 
1866).    Appendix  No.  1,  70  U.  S.  778. 

16  See:  Wiel,  Water  Rights  in  the  Western  States,  §§  66-91.    The  doc- 
trine of  prior  appropriation  as  applied  to  water  is  not  the  unique  creation 
of  the  miners   of   the  West  as  many  have   supposed.     This   doctrine   had 


EXTRALATERAL  RIGHTS  443 

There  is  some  difference  of  opinion  as  to  when  quartz  mining 
began  in  California.  There  is  no  doubt  but  that  in  1850  rich  out- 
crops of  gold-bearing  quartz  had  been  discovered  and  located.17 

The  Morgan  Mine  on  Carson  Hill  in  Calaveras  County  is  re- 
ported to  have  been  discovered  in  February,  1850,  and  over  two 
million  dollars  taken  out  in  a  little  over  a  year.  The  ore  was  so 
rich  that  much  of  it  was  treated  in  hand  mortars.  The  remainder 
was  ground  in  arrastras,  as  most  of  the  miners  employed  by  the 
owners  were  Mexicans  and  this  was  the  old  Spanish  method  of 
treating  ore.18 

In  Mariposa  County  on  the  Jackson  lode,  fifteen  Cornish  miners 
were  employed  and  a  steam  quartz  mill  was  erected  in  September, 
1850,  having  been  purchased  in  San  Francisco  in  May.19 

"Highgrade"  quartz  showing  free  gold  was  found  at  Gold  Hill 
near  Grass  Valley  in  Nevada  County  in  October,  1850.  Other 
discoveries  were  made  immediately  following  this  one.  A 
quartz  mill  was  erected  at  Grass  Valley  by  two  Germans  during 
this  same  year.20 

It  is  quite  evident  that  quartz  mining  had  become  common  by 
the  end  of  1850,  and  these  reports  of  the  earliest  operations  are 
particularly  interesting  to  those  seeking  the  source  of  our  quartz 
mining  laws,  as  indicating  that  Germanic,  Cornish  and  Spanish  in- 
fluence were  each  intimately  associated  with  this  early  quartz 
mining. 

Following  closely  on  the  discovery  of  quartz  veins  which  could 


been  in  force  in  the  mining  districts  of  the  Germanic  states  for  centuries. 
The  writer  has  collected  considerable  interesting  material  on  this  subject 
from  original  sources  which  he  hopes  to  present  at  some  future  time. 

17  Browne,  Mineral  Resources   (1867),  p.  20. 

18  Browne,  Mineral  Resources  (1868),  p.  59.    The  ore  in  this  mine  near 
the  outcrop  was  so  fabulously  rich  that  a  band  of  ruffians  under  the  leader- 
ship  of    Billy   Mulligan    drove   the   owners    away   by   force   and   worked    it 
themselves    until    ejected    by   Court.      Cases    involving   this   mine   were    ap- 
pealed to  the  Supreme  Court  of  the  State  on  six  different  occasions  and 
in  none  of  these  cases  was  the  question  of  extralateral  rights  raised,  indi- 
cating  that   there   are   other   prolific   sources    of    litigation.      The    first    suit 
which    is    reported    was    brought    upon    a    contract    of    limited    partnership 
entered  into  March,  1850,  in  Alabama  and  which  contemplated  the  erection 
of  a  quartz  mill  which  appears  to  have  been  .accomplished  in  the  Fall  of 
1850  at  Carson  Hill  in  order  to  treat  ores  from  the  Morgan  Mine.     Ross  v. 
Austill   (1852),  2  Cal.  183.     This  mine  was  subsequently  acquired  by  James 
G.  Fair  and  is  now  owned  by  one  of  his  heirs. 

19  Gregory  Yale  states  in  his  work  on  "Titles  to  Mining  Claims,  Etc." 
(1867),  that  he  was  one  of  the  victimized  shareholders   in  this   company 
p.  58,  note. 

20  Crane,  Gold  and  Silver,  pp.  59,  122. 


444  CALIFORNIA  LAW  REVIEW 

be  profitably  worked,  we  find  that  district  rules  and  regulations 
were  adopted  governing  their  acquisition.  The  earliest  set  of  rules 
of  which  we  have  any  record  was  adopted  December  3<Dtli,  1850, 
by  the  Gold  Mountain  Mining  District,  Nevada  County,  California. 
These  provided  that  "thirty  by  forty  feet  shall  constitute  a  full 
claim."  21  On  February  3Oth,  1851,  the  neighboring  Union  Quartz 
Mountain  Mining  District  adopted  an  identical  provision  and  in 
May,  1851,  claims  sixty  feet  square  were  authorized  on  Kentucky 
Hill.21a  These  rules  were  doubtless  patterned  after  placer  district 
regulations  which  in  many  instances  allotted  a  small,  rectangular, 
superficial  area  to  each  claimant.22  There  was  clearly  no  attempt 
to  confer  an  extralateral  right  or  right  to  follow  a  vein  indefinitely 
on  its  downward  course.28 

The  first  appearance  of  the  extralateral  right  in  any  district 
regulations  that  has  come  to  the  writer's  attention  is  to  be  found 
in  those  adopted  June  6th,  1851,  in  the  Saunder's  Ledge  Mining 
District  also  situated  in  Nevada  County.  Article  3rd  of  these 
local  laws  states  that  "One  hundred  feet  on  the  ledge  with  the 
dips  and  angles  shall  constitute  a  claim."  24  Here  we  have  a  typical 
grant  of  the  right  expressed  in  its  simplest  form.  If  there  were 
only  an  opportunity  to  examine  the  miners  who  attended  that 
meeting  and  ascertain  the  reason  which  prompted  the  selection  of 
this  form  of  measurement,  the  question  as  to  the  origin  of  our 
extralateral  right  might  be  easily  solved.  Did  they  have  in  mind 
the  mining  laws  of  Germany  or  Derbyshire,  England,  or  merely 
the  simple  idea  that  the  vein  and  not  the  surface  ground  was  the 
thing  of  value  which  they  were  seeking  to  acquire  a  right  to  and 
that  to  divide  it  up  into  segments  along  its  length  was  the  only 
obvious  way  to  apportion  it?  Probably  this  question  will  never 
be  conclusively  answered.  The  time  has  long  since  elapsed  when 
any  persons  who  took  part  in  that  meeting  can  be  interviewed  and 


21  Vol.  XIV,  Tenth  U.  S.  Census  (Mining  Laws),  p.  30. 
siald.  pp.  332-333. 

22  In  his  report  of  1867  on  Mineral  Resources,  p.  231,  J.  Ross  Browne 
states  that  the  early  quartz   regulations  were   framed  "under  the   influence 
of  persons  familiar  only  with  small  claims  customary  in  the  placers." 

23  This  is  explained  in  part,  at  least,  by  Mr.  Arthur  Foote  of  Grass 
Valley   who   has    informed   the   writer    that    the    ledge    on    Gold    Mountain 
where  the  earliest  regulations  were   framed  is  flat  lying   and   the   exercise 
there  of  an  extralateral  right  would  be  much  less  appropriate  than  on  veins 
with  a  steeper  dip. 

24  Vol.  XIV,  Tenth  U.  S.  Census,  p.  334. 


EXTRALATERAL  RIGHTS  445 

unless  some  diary  or  other  private  records  exist,  of  which  there  is 
no  great  likelihood  at  this  late  date,  the  matter  will  be  left  to 
speculation  and  conjecture. 

Reasoning  from  the  facts  presented  on  the  face  of  the  provision 
itself,  there  is  considerable  circumstantial  evidence  to  sustain  the 
generally  accepted  view  that  the  source  of  this  regulation  is  to  be 
found  in  the  mining  law  of  Derbyshire.  The  linear  measurement 
of  one  hundred  feet  is  practically  the  same  as  that  of  the  Derby- 
shire claims  which  varied  from  twenty-seven  to  thirty-two  yards 
in  length.25  The  words  "dips  and  angles"  are  old  English  terms 
such  as  would  naturally  be  used  in  Derbyshire  and  the  simple  man- 
ner of  marking  off  lengths  along  the  ledge  is  peculiar  to  the  Derby- 
shire extralateral  right  which  is  one  of  the  purest  and  simplest 
forms  of  this  right.  On  the  other  hand,  we  have  ample  evidence 
that  German  miners  were  already  mining  in  this  vicinity  and  that 
they  had  constructed  a  quartz  mill  at  Grass  Valley.26 

If  these  miners  from  Germany  were  responsible  for  the  adop- 
tion of  the  extralateral  right  in  Saunder's  Ledge  Mining  District, 
they  could  only  have  suggested  the  general  idea,  for  the  Germanic 
extralateral  right  was  of  an  entirely  different  character,  giving  the 
right  to  mine  between  parallel  planes  27  following  the  vein  in  depth 
on  each  side  with  all  of  its  turnings  and  variations.28 


25  See :  4  California  Law  Review,  375. 

26  The  writer  has  read  many  of  the  published  diaries  of  "Forty-niners" 
and  local  newspapers  of  that  period  and  finds  ample  evidence  to  support 
the  statement  that  skilled  miners  from  Germany  were  in  California  in  con- 
siderable  numbers   by   1850.     He   possesses    a    curious   little   book   entitled, 
"The  German  Emigrants  or  Voyage  to   California,"  published  about   1851 
in   Germany  which   contains   the    following  interesting   statement:    "In   the 
Spring  of  the  year  1851,  there  was  an  unusual  stir  and  bustle  in  the  village 
of  Joachimsthal.     [This  is  the  famous  silver  mining  district  of  the  Middle 
Ages  and  our  word  "dollar"  is  derived  from  this  valley  or  Thai,  so  inti- 
mately .associated   with   silver.]      The   rage    for   emigration   and   a   restless 
longing  to  try  their  luck  beyond  the  seas,  had  attained  a  height  bordering 
on  frenzy.  .  .  .    The  excitement  was  daily  gaining  ground  to  such  an  extent, 
that  the  agent  of  an  American   Emigration   Company  was  welcomed   and 
honored  as  a  special  messenger  sent  by  Providence." 

27  Strictly  speaking,  these  are  not  true  planes  since  they  conform  to  all 
of  the  rolls  and  curvatures  of  the  vein.     They  are,  properly  speaking,  sur- 
faces,  but   the  use  of   the   latter  term  might  lead   to   confusion   with   the 
surface  of  the  ground. 

28  Though  mining  claims  to  which  the  extralateral  rights  attached  were 
abolished  in  most  of  the  Germanic  States  by  the  time  of  the  gold  rush  to 
California,   yet   all    vested   rights   were    recognized   and    thousands    of    the 
oldest  and  best  known  mines  in  Germany  were  still   entitled  to,   and  did 
exercise  this  right,  as  many  of  them  have  continued  to  up  to  the  present 
time.     4  California  Law  Review,  368-369. 


446  CALIFORNIA  LAW  REVIEW 

It  is  a  noteworthy  coincidence  that  on  June  7th,  1851,  on  the 
day  following  the  Saunder's  Ledge  meeting,  the  quartz  miners  of 
Drytown  Mining  District,  Amador  County,  "Resolved,  3rd:  That 
the  size  of  a  claim  in  quartz  veins  shall  be  two  hundred  and  forty 
(240)  feet  in  length  of  the  vein  without  regard  to  the  width  to  the 
discoverer  or  company  and  one  hundred  and  twenty  (120)  feet  in 
addition  thereto  for  each  member  of  the  company,  etc."  2g  On 
June  25th,  1851,  or  only  nineteen  days  after  the  Saunder's  Ledge 
rules  were  adopted,  the  miners  of  Mariposa  County  met  at  Quartz- 
burg  and  framed  a  set  of  local  laws  which  provided: 

"That  all  quartz  veins  now  owned  or  occupied  in  the 
County  of  Mariposa,  or  which  may  be  hereafter  discovered  or 
claimed,  shall  be  governed  by  the  following  rules,  to-wit:  The 
interest  of  a  party  making  a  discovery  of  quartz  shall  be  five 
hundred  feet  in  length,  and  the  entire  width  of  the  vein,  be  that 
more  or  less.  The  interests  of  all  persons  claiming  subse- 
quently to  the  discovery  shall  be  two  hundred  and  fifty  feet  in 
length,  and  the  entire  width  of  the  vein."  30 

Here  we  have  a  distinct  use  of  language  to  convey  the  same 
idea  of  an  extralateral  grant.  The  phrases  "without  regard  to  the 
width"  and  "the  entire  width  of  the  vein,  be  that  more  or  less," 
are  clearly  to  remove  any  idea  of  lateral  limitation  from  the  pre- 
scribed linear  measurement.  Here  again  one  might  argue  that  the 
influence  of  the  Derbyshire  law  is  evident,  for  in  Derbyshire  the 
discoverer  of  any  "new  Rake  or  vein"  was  entitled  to  two  "meers" 
or  measures  of  length  along  the  vein.31  While  both  the  Spanish- 
Mexican  and  Germanic  laws  rewarded  the  discoverer  with  addi- 
tional ground,  so  that  this  feature  of  mining  law  had  become  quite 
universally  accepted  throughout  the  world,  yet  it  was  only  in 
Derbyshire  that  two  full  claims  were  allowed  him. 

On  October  ist,  1851,  the  Day's  Ledge  Mining  District  in  Ne- 
vada County  adopted  by-laws,  article  first  of  which  provided  that 
"Claims  shall  be  fifty  feet  along  the  course  of  the  ledge,  with  its 

29  Vol.  XIV,  Tenth  U.  S.  Census,  p.  271.  In  adopting  these  resolutions 
"it  was  urged  that  fifty  feet  of  a  vein  which  probably  had  no  bottom,  was 
quite  enough  to  satisfy  any  reasonable  man."  Gold-bearing  quartz  was 
first  discovered  in  Amador  Creek  in  February,  1851.  A  mill  was  erected 
but  proved  a  failure  till  an  experienced  German  miner  came  upon  the 
scene.  The  historian  says  "the  number  of  talented  men  in  this  convention 
was  noted  although  it  was  not  unusual  for  such  bodies  in  the  early  fifties 
to  be  composed  of  men  who  might  have  sat  in  legislative  halls  with  credit 
to  themselves  and  all  concerned."  History  of  Amador  County  (1881),  pp. 
145-146. 

so  Id.,  p.  272. 

81 4  California  Law  Review,  375. 


EXTRALATERAL  RIGHTS  447 

dips,   breadths,  and  angles/' 32     Following  in  rapid  succession  in 

1851,  and  particularly  in  1852,  and  even  as  late  as  1855,  new  mining 
districts  were  formed  in  Nevada  County,  most  of  which  provided 
that  claims  should  be  one  hundred  feet  along  the  ledge  with  the 
"dips    and   angles."      Some    of   the   regulations   added   the   words 
"breadths,"  others  "depths"  33  and  it  is  particularly  noteworthy  that 
the  Grass  Valley  Quartz  Mining  District  regulations  of  December 
2oth,  1852,  used  the  language  "dips,  angles  and  variations"  of  the 
vein,34  which  is  the  identical  language  later  adopted  by  Congress  in 
the  first  general  mining  act  of  i866.35     The  regulations  of  Grizzly 
Flat  Mining  District  of  El  Dorado  County  passed  February  4th, 

1852,  provided  that  "One  hundred  and  fifty  feet  in  length  and  the 
dip  or  inclination  of  said  lead  to  any  depth  and  its  width  consti- 
tute one  claim."  36     The  use  of  the  term  "spurs"  appears  in  the 
local  rules  of  Angel's  Mining  District,  Calaveras  County,  adopted 
July  2Oth,  1855,  which  granted  one  hundred  feet  on  the  length  of 
a  vein  and,  "all  the  dips,  spurs  or  angles."37     This  also  is  of  in- 
terest,  for  the  Sutro  Tunnel  Act  passed  by   Congress  July  25th, 
i866,38  uses  the  terms  "dips,  spurs  and  angles"  as  applied  to  the 
veins  that  might  be   encountered   by  the  tunnel   and  these  terms 
were  in  common  use  in  written  conveyances  of  quartz  claims.39 

Other  terms  which  are  distinctly  Cornish  in  origin  and  also  in 
use  in  Derbyshire  are  found,  such  as  "slides"  meaning  cross  fis- 
sures,40 "Fitters"  which  is  undoubtedly  a  corruption  of  the  Old  Eng- 

32  Vol.  XIV,  Tenth  U.  S.  Census,  p.  334. 
ss  Id.  pp.  330-345. 
S*  Id.  p.  330. 

35  This   language   was    carried   by   the    Nevada   County   miners    to   the 
Comstock  and  vicinity  and  adopted  by  Senator  Stewart  in  framing  the  Act 
of  1866. 

36  Id.  p.  275.     The  word  "lead"  is  an  old  English  term  from  which  the 
word  "lode"  was  derived  and  both  were  in  common  use  in  Cornwall  and 
to  some  extent  in  Derbyshire.     (Bullion  M.  Co.  v.  Croesus  M.  Co.   (1866), 
2   Nev.   168,   176,   says  lode  is   "a   Cornish   word   nearly   synonomous   with 
vein.")     De  la  Beche  says  in  his  masterly  work  on  the  Geology  of  Corn- 
wall,  (1839),  that  lode  "is  a  leading  body  traversing  rocks"  and  "is  a  term 
employed  in  Cornwall  and  Devon  for  a  mineral  vein."   (pp.  285  note,  343). 
The  widespread  use  of  this  term  in  the  early  days  of  mining  here  estab- 
lishes the  influence  of  miners  from  England. 

37  Id.  p.  285. 

38  14  U.  S.  Stats.  242. 

39  As  a  matter  of   fact,  the  term  "spurs"  was  in  common  use  in  the 
early  days  of  quartz  mining.     The  writer  has   a  copy  of   a   record  of   a 
location  of  the  Morgan  Mine  on  Carson  Hill  dated  October  12,  1850,  calling 
for  a  certain  length  of  the  main  ledge  "with  the  branches  or  spurs  of  said 
ledge." 

40  De   la   Beche,   Geology  of   Cornwall,    p.   313 ;    Tapping,    Customs    ot 
Derbyshire,   (1851),  p.  31. 


448  CALIFORNIA  LAW  REVIEW 

lish  term  "Flitters,"  meaning  fragments  of  the  vein,  indicated  that 
the  influence  of  miners  from  England  in  framing  these  regulations 
was  very  decided.  "Flatt"  diggings  are  mentioned  in  the  rules  of  Mt. 
Pleasant  Mining  District  of  El  Dorado  County.41  This  is  an  un- 
usual term  used  in  the  laws  of  Derbyshire.42  The  wording  of  the 
extralateral  grant  became  very  complex  in  the  case  of  later  regu- 
lations and  we  find  the  terms  "dips,  angles  and  spurs,  offshoots, 
outcrops,  depths,  widths  and  variations"  used  to  express  this  idea.43 

One  hundred  linear  feet  along  the  ledge  was  during  the  fifties 
the  commonest  length  in  California  for  a  quartz  claim,  but  during 
the  early  sixties  two  hundred  feet  along  the  ledge  or  lead  became 
the  rule  for  the  newer  districts.44  A  few  districts  were  formed 
from  time  to  time  in  which  square  measurement  of  quartz  claims 
with  vertical  boundaries  was  adhered  to,  but  these  were  in  the 
small  minority.  In  surface  width  no  lateral  measurement  what- 
ever was  specified  in  the  earlier  regulations,  leaving  the  acquisi- 
tion of  sufficient  surface  area  for  convenient  working  of  the  lode 
to  the  individual  locator.  In  fact,  most  of  the  early  rules  expressly 
prescribed  a  certain  length  of  claim  "without  regard  to  width."  In 
the  late  fifties  and  early  sixties  a  definite  width  was  usually  pre- 
scribed but  this  varied  from  fifty  feet  in  some  districts  to  six  hun- 
dred feet  in  total  width  in  others.  The  latter  measurement  was 
designated  in  El  Dorado  Mining  District,  El  Dorado  County,  April 
7th,  1863, 44a  and  is  noteworthy  because  the  Mining  Act  of  1872 
adopted  this  as  the  maximum  width  for  lode  claims.  Probably 
two  hundred  and  fifty  feet  "on  each  side  of  the  center  of  the 
lead"  45  became  the  commonest  lateral  measurement  in  California. 

The  mining  regulations  of  the  various  districts  of  Nevada  are 
of  special  interest  to  us  because  it  is  generally  conceded  that  Sen- 
ator Wm.  M.  Stewart,  who  represented  Nevada  in  Congress,  in 
framing  the  Act  of  1866  was  profoundly  influenced  by  the  miners' 


«Vol.  XIV,  Tenth  U.  S.  Census,  p.  275. 

42  See   Mander's    Glossary   of   Derbyshire   Mining   Terms,    etc.    (1824), 
p.  12. 

"Vol.  XIV,  Tenth  U.  S.  Census,  310-311,  500. 

44  "Quartz    claims    are    usually   two    hundred    feet    long    following    the 
course  of  the  lode."     Hittel,  Resources  of  California,   (1866). 

44»Vol.  XIV,  Tenth  Census,  p.  312. 

45  This  language  is  also  of  interest  because  the  Act  of  1872  provides 
that  lode  claims  shall  not  "extend  more  than  three  hundred  feet  on  each 
side  of  the  middle  of  the  vein  at  the  surface."    U.  S.  Revised  Stats.,  §  2320. 


EXTRALATERAL  RIGHTS  449 

regulations  of  his  state.  He  was  ably  assisted  by  Senator  Conness 
of  California.  As  mining  spread  from  California  into  the  other 
parts  of  the  West,  the  miners  carried  with  them  to  the  new  "dig- 
gings" the  same  general  ideas,  organized  mining  districts  and 
adopted  rules  and  regulations  similar  to  those  existing  in  Cali- 
fornia. As  might  be  expected,  coming  at  a  later  period  when  many 
of  the  divergent  views  which  sprang  up  simultaneously  in  different 
parts  of  the  pioneer  camps  of  California  had  become  harmonized, 
the  rules  adopted  in  other  Western  States  and  territories  con- 
formed in  a  remarkable  degree  to  a  general  type.  This  is  par- 
ticularly true  of  Nevada.  Most  of  its  district  regulations  were 
adopted  between  the  years  1859  and  i866.46  With  very  few  excep- 
tions these  rules  prescribed  claims  of  two  hundred  feet  in  length 
on  the  lead  or  ledge,  which,  as  we  have  seen,  had  become  the  pre- 
vailing length  of  lode  claims  in  mining  districts  of  California  of 
the  same  period.47  The  extralateral  grant  in  the  Nevada  regula- 
tions was  also  described  in  the  same  language  that  had  originated 
in  California.48  The  miner  was  entitled  to  his  two  hundred  feet 
along  the  vein  together  with  all  its  "dips,  spurs  and  angles."  The 
term  "variations"  was  also  added  in  some  instances  as  well  as  other 
words  such  as  "strings  and  feeders"  to  express  the  idea  of  the  all- 
inclusiveness  of  the  grant.  In  Nevada  the  extralateral  feature 
was  practically  universal,  a  notable  exception  being  in  Eureka 


*6Vol  XIV,  Tenth  U.  S.  Census,  pp.  508-554. 

47  In  Arizona  claims  of  two  hundred  feet  in  length  were  quite  common 
but  the  majority  of  the  districts  specified  three  hundred  feet.     Vol.   XIV, 
Tenth  U.   S.  Census,  pp.  247-266.     The  districts  of  Utah,   formed  in  1863- 
1864,  prescribed  two  hundred  feet  as  the  lawful  length  in  any  district  noted. 
Id.  pp.  614-625.     In  Colorado  the  customary  length  was  one  hundred  feet. 
Colorado  was  further  removed  from  the  influence  of  the  Pacific  Slope  and 
had  elaborate  regulations  of  a  unique  type  providing  for  tunnel  claims  and 
possessing  many  features  not  found  in  the  regulations  of  other  states.     Id. 
pp.  365-472.     Neither  were  the  words  "dips,  spurs,  angles  and  variations," 
etc.,  commonly  used  in  Colorado  though  they  were  used  in  all  of  the  other 
States  noted.     The  width  of  lode  claims  in  these  States  varied  as  in  Cali- 
fornia.    Colorado  already  showed  the  tendency  toward  narrow  claims  now 
characteristic  of  that   State  and  as  early  as   August  21st,   1862,   the   rules 
of  Bevan  Mining  District,  Summit  County,  provided  that  lode  claims  shall 
be  "twenty-five  feet  wide  on  each  side  of  the  wall  rock  of  the  crevice  of 
said  lode."     Id.  p.  462;  see  also  p.  466.     The  Castle  Dome  District  regula- 
tions  of  Yuma   County,   Arizona,    in    1862,   provided   for   a   width    of    one 
hundred  yards  on  each  side  of  the  vein  which  is  the  same  width  specified 
in  the  Act  of  1872  passed  by  Congress  ten  years  later. 

48  This  is  quite  natural,  for  miners  from  California  migrated,  in  large 
numbers,  to  Nevada  and  particularly  to  the  Comstock  Lode  and  vicinity. 
Lord,  Comstock  Mining  and  Miners,  U.  S.  G.  S.   (1883);  Browne,  Mineral 
Resources,   (1867),  p.  27. 


450  CALIFORNIA  LAW  REVIEW 

Mining  District,  where  in  1869  the  miners  attempted  to  abolish  the 
extralateral  right  and  prescribed  that,  because  of  the  peculiar 
nature  of  the  deposits,  claims  should  be  one  hundred  feet  square 
in  order  to  avoid  "expensive  litigations."  49 

During  most  of  this  period,  from  1850  to  1866,  the  state  and 
territorial  governments  as  already  noted  were  satisfied  to  allow  the 
miners  to  determine  for  themselves  the  laws  which  controlled  their 
acquisition  and  working  of  mining  claims.  California  did  not 
legislate  on  the  subject  at  all,  except  to  approve  of  what  the  miners 
had  done. 

The  legislature  of  Idaho,  February  4,  1864,  passed  an  act  pro- 
viding : 49a 

"That  any  quartz  claim  shall  consist  of  two  hundred  feet 
in  length  along  the  lead  or  lode,  by  one  hundred  feet  in 
breadth,  covering  and  including  all  dips,  spurs  and  angles, 
etc." 

This  right  was  later  expressly  confined  to  the  one  lode  claimed. 
The  act  was  silent  as  to  placers.50 

A  statute  of  Arizona  effective  January  ist,  1865,  provided  that: 
"Every  mining  claim  or  pertenencia  is  declared  to  consist 
of  a  superficial  area  of  two  hundred  yards  square,  to  be  meas- 
ured so  as  to  include  the  principal  mineral  vein  or  mineral  de- 
posits, always  having  reference  to  and  following  the  dip  of  the 
vein  so  far  as  it  can  or  may  be  worked,  etc." 

The  act  was  quite  comprehensive  and  somewhat  complex  and 
shows  very  strong  influence  of  the  Mexican-Spanish  laws,  many 
terms  of  the  latter  being  employed.  It  expressly  excluded  placer 
mining  from  its  operation.51 

A  statute  of  Oregon  of  October  24,  1864,  provided: 

Section  I.  "That  any  person  or  company  of  persons  es- 
tablishing a  claim  on  any  quartz-lead  containing  gold,  silver, 
copper,  tin  or  lead,  or  a  claim  on  a  vein  of  cinnabar,  for  the 
purpose  of  mining  the  same,  shall  be  allowed  to  have,  hold 
and  possess  the  land  or  vein,  with  all  its  dips,  spurs  and  angles 
for  the  distance  of  three  hundred  feet  in  length  and  seventy- 
five  feet  in  width  on  each  side  of  such  lead  or  vein." 

This  statute  also  provided  that  only  one  claim  on  each  lead 


«  Vol.  XIV,  Tenth  U.  S.  Census,  p.  551. 
*9a  Browne,  Mineral  Resources,   (1667),  pp.  248-249. 
so  Act  of  January  12,  1865 ;  Vol.  XIV,  Tenth  U.  S.  Census,  p.  135. 
61  Browne,    Mineral    Resources,     (1867),     pp.    249-257;     Yale,    Mining 
Claims,  p.  84. 


EXTRALATERAL  RIGHTS  451 

or  vein  could  be  held  by  location  and  expressly  left  the  acquisition 
of  title  to  placer  claims  to  the  miners'  local  laws.52 

The  territorial  legislature  of  Washington  on  January  29th, 
1863,  adopted  the  following  statute: 

Section  I.  "That  the  extent  of  a  quartz  mining  claim  shall 
not  exceed  two  hundred  feet  of  the  lead,  including  all  the  dips, 
spurs  and  angles  embraced  within  said  two  hundred  feet." 

The  territorial  legislature  of  Montana  on  December  26th,  1864, 
enacted  the  following : 

Section  III.  "Claims  on  any,  lead,  lode  or  ledge,  either  of 
gold  or  silver,  hereafter  discovered,  shall  consist  of  not  more 
than  two  hundred  feet  along  the  lead,  lode  or  ledge,  together 
with  all  dips,  spurs  and  angles  emanating  or  diverging  from 
said  lead,  lode  or  ledge,  as  also  fifty  feet  on  each  side  of  said 
lead,  lode  or  ledge,  for  working  purposes,  etc." 

The  amount  of  ground  which  could  be  taken  up  on  the 
lode  was  limited  to  one  thousand  feet  in  each  direction  from 
the  discovery  claim. 

Colorado  on  November  7th,  1861,  adopted  a  statute  limiting 
the  length  of  a  lode  claim  to  one  hundred  feet.  By  Act  of  March 
n,  1864,  sixteen  such  claims  could  be  consolidated  under  one  dis- 
covery and  on  February  9th,  1866,  the  length  of  a  claim  for  each 
person  was  changed  to  fourteen  hundred  feet.53 

New  Mexico,  on  January  i8th,  1865,  passed  an  act  which  from 
the  evidence  at  hand,  appears  to  have  limited  claims  to  two  hun- 
dred feet  for  each  person  of  the  length  of  the  lode  "of  its  entire 
width,  including  all  its  dips,  openings,  spurs,  angles  and  variations, 
with  a  right  to  follow  such  vein  to  any  depth,  etc."  and  a  total 
limit  of  one  thousand  five  hundred  feet  for  a  company  claim.54 
A  Nevada  statute  approved  February  27th,  1866,  provided  that: 

Section  23.  ".  .  .  No  person  shall  be  entitled  to  hold  by 
•  location  more  than  two  hundred  feet  of  any  one  ledge  except 
by  virtue  of  discovery  of  the  same,  for  which  he  shall  be  en- 
titled to  hold  two  hundred  feet  additional  ....  No  claim 
shall,  in  the  aggregate,  exceed  in  extent  two  thousand  feet  on 
any  one  ledge." 

Section  24.     "Any  location  made  on  a  ledge  by  authority 


52  Vol.  XIV,  Tenth  U.  S.  Census,  pp.  200-201.     Yale  says  this  Oregon 
statute  "is  a  mere  transcript  of  the  miners'   laws   regulating  claims   upon 
lodes,   noticed   as   in    force  in   California,   and  which   may  be   found  else- 
where."    Yale,  Mining  Claims,  p.  84. 

53  Morrison's  Mining  Rights,  (14th  ed.)  p.  21;  1  Copp's  Land  Owner,  84. 
"  Vol.  XIV,  Tenth  U.  S.  Census,  p.  184. 


452  CALIFORNIA  LAW  REVIEW 

of  this  act  shall  be  deemed  to  include  all  the  dips,  spurs,  angles 
and  variations  of  said  ledge. 

"The  locators  of  any  ledge  shall  be  entitled  to  hold  one 
hundred  feet  on  each  side  of  the  same,  etc.  .  .  ." 

This  act  expressly  provided  that  placer  mining  should  be  "sub- 
ject to  such  regulations  as  the  miners  in  the  several  mining  districts 
shall  adopt."  55 

It  is  quite  evident  that  these  state  statutes  were  based  on  the 
local  miners'  laws  and  were  merely  declaratory  of  the  existence  of 
an  extralateral  right  on  quartz  veins  which  right,  as  has  been  ob- 
served, had  already  been  fully  developed  in  the  various  mining  dis- 
tricts by  the  miners  themselves. 

The  Federal  Mining  Act  of  i866.56 

During  all  these  years  the  Federal  Government  had  remained 
silent  on  the  question  of  the  disposition  of  these  mineral  lands.57 


55  Browne,   Mineral    Resources,  (1867),   pp.   242-245. 

56  14  U.  S.  Stats,  at  L.  251. 

57  ".  .  .  .  this  system  of  free  mining  fostered  by  our  neglect,  and  ma- 
tured and  perfected  by  our  generous  inaction."     Remarks  of  Senator  Stew- 
art, Appendix  No.  1,  70  U.  S.  779.     There  was  indirect  recognition  of  these 
possessory  rights  of  miners  in  a  number  of  earlier  Congressional  statutes : 

An  Act  of  Congress  establishing  federal  courts  for  the  District  of  Ne- 
vada approved  February  27,  1865,  provided :  §  9,  "That  no  possessory  action 
....  for  the  recovery  of  a  mining  title  ....  shall  be  affected  by  the  fact 
that  the  paramount  title  to  the  land  on  which  such  mines  lie  is  in  the 
United  States,  but  each  case  shall  be  adjudged  by  the  law  of  possession." 
13  Stats,  at  L.,  440. 

An  Act  of  Congress  of  March  3,  1865,  regulating  the  sale  of  town 
lots  provided :  §  2,  "That  where  mineral  veins  are  possessed,  which  posses- 
sion is  recognized  by  local  authority,  .  .  .  town  lots  .  .  .  shall  be  subject  to 
such  possession  ....  Provided,  however,  that  nothing  herein  shall  be 
construed  as  to  recognize  any  color  of  title  in  possessors  for  mining  pur- 
poses as  against  the  government  of  the  United  States."  13  Stats,  at  L.  529. 

An  Act  of  Congress  of  May  5,  1866,  concerning  the  boundaries  of  the 
State  of  Nevada  provided  that :  "All  possessory  rights  ...  to  mining  claims 
discovered,  located  and  originally  recorded,  in  compliance  with  the  rules 
and  regulations  adopted  by  miners  in  ....  Nevada,  shall  remain  as  valid, 
subsisting  mining  claims;  but  nothing  herein  contained  shall  be  so  con- 
strued as  granting  a  title  in  fee  to  any  mineral  lands  held  by  possessory 
titles  in  the  mining  states  and  territories."  14  Stats,  at  L.  43. 

Treaty  with  Peru:  Art.  XIV.  "Peruvian  citizens  shall  enjoy  the 
same  privileges,  in  frequenting  mines,  and  in  digging  or  working  for  gold, 
upon  the  public  lands  situated  in  the  State  of  California,  as  are,  or  may  be 
hereafter,  accorded  by  the  United  States  of  America  to  the  citizens  or 
subjects  of  the  most  favored  nation."  10  U.  S.  Stats,  at  L.  926,  932.  July 
26,  1851. 

Treaty  with  Tabeguache  Indians :  Art.  III.  "The  right  of  any  citi- 
zen of  the  United  States  to  mine  without  interference  or  molestation  in 
any  part  of  the  country  hereby  retained  by  said  Indians  [in  Colorado], 
where  gold  or  other  metals  or  minerals  may  be  found,  is  hereby  also  con- 
ferred and  guaranteed."  13  U.  S.  Stats,  at  L.  673,  674.  Oct.  7,  1863. 


EXTRALATERAL  RIGHTS  453 

They  were  a  part  of  the  public  domain  and  Congress  was  alone 
empowered  by  the  Federal  Constitution  to  dispose  of  the  territory 
belonging  to  the  United  States.58  Acquiescence  in  the  extensive 
mining  operations  of  these  years  was  presumed  because  of  this 
failure  to  act  and  what  would  otherwise  have  been  a  clear  trespass 
on  the  part  of  the  horde  of  invading  miners  was  recognized  by  the 
courts  as  establishing  a  right  through  sufferance.59 

There  had  been  various  attempts  to  induce  Congress  to  legis- 
late on  the  subject  of  these  mineral  lands  and  there  were  plans  to 
lease  them,  reserving  a  royalty  for  the  government,60  and  also  to 
sell  them  outright  at  public  auction  to  the  highest  bidder,  thus 
enabling  the  government  to  pay  off  a  portion  at  least  of  the  vast 
debt  inherited  from  the  Civil  War.61  The  miners  of  the  West  were 
jealous  of  any  interference  with  the  authority  and  control  over  the 
mining  regions  which  they  had  been  exercising  for  so  many  years.62 
But  the  day  arrived  when  action  by  Congress  could  no  longer  be 
prevented,  and  Senator  Stewart  of  Nevade  and  Senator  Conness  of 

Treaty  with  Shoshonee-Goship  Indians:  Art  IV.  "It  is  further 
agreed  by  the  parties  hereto  that  the  country  of  the  Goship  tribe  [in  Mon- 
tana] may  be  explored  and  prospected  for  gold  and  silver,  or  other  min- 
erals and  metals ;  and  when  mines  are  discovered  they  may  be  worked,  and 
mining  and  agricultural  settlements  formed  and  ranches  established  wher- 
ever they  may  be  required."  13  Stats,  at  L.  681,  682.  Oct.  12,  1863.  See  also 
Miners  License  Tax  (1865),  13  U.  S.  Stats,  at  L.  473,  and  Bullion  Tax 
(1864),  13  U.  S.  Stats,  at  L.  271-272. 

58  U.  S.  Const.  Art.  IV,  §  3,  subd.  2. 

59  "We  cannot   shut  our  eyes  to  the  public  history,   which   informs  us 
that   under   this    legislation    (in    re   the    State    of    Nevada   recognizing   the 
validity   and    binding   force    of   the   rules,    regulations    and    customs    of   the 
mining  districts)    and   not  only  without  interference  by  the   national   gov- 
ernment, but  under  its  implied  sanction,  vast  mining  interests  have  grown 
up,    employing   many   millions    of    capital,    and   contributing    largely   to   the 
prosperity   and   improvement   of    the   whole    country."      Sparrow   v.    Strong 
(1865),   70  U.   S.  97,   104,   18  L.   Ed.  49.     "For  eighteen  years— from   1848 
to  1866 — the  regulations  and  customs  of  miners,  as  enforced  and  moulded 
by  the  courts  and   sanctioned  by  the   legislation   of  the   State,   constituted 
the  law  governing  property  in  mines   and   in  water  on  the  public  mineral 
lands.     Until  1866,  no  legislation  was  had  looking  to  a  sale  of  the  mineral 
lands."    Jennison  v.  Kirk  (1878),  98  U.  S.  453,  458-459,  25  L.  Ed.  240. 

60  When  Senator  Stewart's  bill  came  before  the  Senate  it  contained  a 
clause  providing  for  payment  to  the  government  of  a  royalty  of  three  per 
cent  of  the  output  of  the  mines.     This  was  eliminated'  before  the  bill  was 
finally  passed.     See  Congressional  Globe  Debates  of  1866. 

61  See  Yale,  Mining  Claims,  pp.  340-354. 

62  Whereas ;   since  the  discovery  of  gold  in  California  it  has  been  the 
policy  of   the   General   Government    and   of   the   different   state   and   Terri- 
torial legislatures  upon  the  Pacific  slope  (except  the  last  legislature  of  this 
state)   not  to  interfere  with  the  laws  and  regulations  of  the  miners  in  the 
different    districts,    but   to    permit    them    to    enact    such    laws    as    to    them 
seemed  proper  and  just  in  regard  to  the  government  of  the  mines,   such 
laws    having    always    when    tested   been    sanctioned    and    approved    by    the 
highest  judicial  tribunals,  and, 


454  CALIFORNIA  LAW  REVIEW 

California,  realizing  that  they  must  take  affirmative  action  if  they 
would  forestall  adverse  legislation  by  those  of  the  Eastern  States 
who  were  not  in  sympathy  with  the  Western  problems,  prepared 
and  introduced  the  bill  generally  known  as  the  mining  Act  of 
i866.63 

This  act  established  the  free  right  to  mine  on  the  public  domain 
and  legalized  what  had  theretofore  been  a  technical  trespass.  Sen- 
ator Conness  stated  in  his  report  on  the  bill  as  chairman  of  the 
Committee  on  Mines  and  Mining : 

"By  this  bill   it  is  only  proposed  to   dispose  of  the   vein 

mines It  is  not  proposed  to  interfere  with,  or  impose 

any  tax  upon,  the  miners  engaged  in  working  placer  mines,  as 
those  mines  are  readily  exhausted,  and  not  generally  remuner- 
ative to  those  engaged  in  working  them (It  is)  an  act 

to  provide  for  investing  the  miners  of  the  country  with  the 
fee  simple  to  their  vein  mines 


Whereas ;  under  this  liberal  policy  the  development  of  mineral  wealth 
upon  the  Pacific  Slope  has  been  unparalleled  in  the  history  of  the  world, 
and  possessing  the  utmost  confidence  in  the  intelligence  in  the  mining 
population  of  this  state,  and  their  capacity  for  creditably  continuing  the 
time  honored  custom  of  enacting  their  own  laws  for  the  government  of 
the  mines  free  from  legislative  interference  and, 

Whereas;  believing  as  we  do  that  no  general  mining  laws  could  be 
enacted  that  would  meet  the  requirements  of  the  different  districts,  as  the 
varied  character,  size  and  location  of  the  ledges  in  the  different  districts 
require  different  laws  and  believing  that  the  action  of  the  last  legislature 
of  this  state,  will  have  a  tendency  to  bring  about  what  we  are  so  anxious 
to  avoid  viz : — Congressional  interference  by  still  more  general  legislation ; 
and, 

Whereas;  many  of  the  provisions  of  the  state  mining  law  are  utterly 
impracticable  in  the  Reese  River  Mining  District  besides  placing  upon  us 
additional  burthens  in  increased  expenses  and  trouble  in  locating  and 
recording  our  claims,  therefore 

Resolved,  that  the  state  mining  law  is  utterly  impracticable  in  many  of 
its  provisions,  obnoxious  and  burthensome  to  the  mining  population  gen- 
erally, and  especially  so  to  the  miners  of  Reese  River  District,  where  the 
peculiar  formation  and  close  proximity  of  the  ledges  render  many  of  its 
provisions  totally  impracticable. 

Resolved,  that  the  last  legislature  of  this  state,  in  taking  from  us  the 
right  so  long  considered  sacred,  viz :  that  of  enacting  our  own  laws  for  the 
government  of  our  mines,  was  guilty  of  a  gross  usurpation,  or  at  least, 
abuse  of  power,  unparalleled  in  the  legislative,  executive,  or  judicial  history 
of  the  Pacific  Slope. 

Resolved,  that  we  are  in  favor  of  the  unconditional  repeal  of  said  law, 
and  will  vote  for  no  person  for  either  branch  of  the  Legislature  not 
pledged  to  vote  and  work  for  its  repeal.  (Adopted  by  mines  of  Nevada, 
March  30,  1866.) 

63  The  threat  of  drastic  legislation  by  opponents  and  the  thrilling  con- 
test over  the  adoption  of  the  Stewart  bill,  which  finally  passed,  as  well  as 
the  reason  for  its  peculiar  title,  "An  Act  granting  a  right  of  way  to  ditch 
and  canal  owners,  etc.,"  is  dramatically  set  forth  by  Yale  in  his  work  on 
Mining  Claims,  pp.  9-12. 


EXTRALATERAL  RIGHTS  455 

"The  mass  of  the  people  living  in  the  mines  feel  that  the 
mines  should  be  left  free  and  open  to  and  within  the  reach 
of  the  hardy  explorer  and  adventurer  without  tax  or  impost 

whatever They  also  fear  all  systems  of  sale  lest  any 

which  should  be  adopted  might  result  in  monopoly 

They,  nevertheless,  will  readily  acquiesce  in  any  plan  which 
shall  confirm  existing  rights  at  reasonable  rates An- 
other feature  of  the  bill  recommended  is,  that  it  adopts  the 
rules  and  regulations  of  miners  in  the  mining  districts  where 
the  same  are  not  in  conflict  with  the  laws  of  the  United  States. 
This  renders  secure  all  existing  rights  of  property,  and  will 
prove  at  once  a  just  and  popular  feature  of  the  new  policy. 
Those  'rules  and  regulations'  are  well  understood,  and  form 
the  basis  of  the  present  admirable  system  in  the  mining  re- 
gions ;  arising  out  of  necessity,  they  became  the  means  adopted 
by  the  people  themselves  for  establishing  just  protection  to  all. 

"In  the  absence  of  legislation  and  statute  law,  the  local 
courts,  beginning  with  California,  recognize  those  'rules  and 
regulations/  the  central  idea  of  which  was  priority  of  posses- 
sion, and  have  given  to  the  country  rules  of  decision,  so 
equitable  as  to  be  commanding  in  its  natural  justice,  and  to 
have  secured  universal  approbation.  The  California  reports 
will  compare  favorably,  in  this  respect,  with  the  history  of 
jurisprudence  in  any  part  of  the  world.  Thus  the  miners' 
'rules  and  regulations'  are  not  only  well  understood,  but  have 
beeen  construed  and  adjudicated  for  now  nearly  a  quarter  of 
a  century. 

"It  will  be  readily  seen  how  essential  it  is  that  this  great 
system,  established  by  the  people  in  their  primary  capacities, 
and  evidencing  by  the  highest  possible  testimony  the  peculiar 
genius  of  the  American  people  for  founding  empire  and  order, 
shall  be  preserved  and  affirmed.  Popular  sovereignty  is  here 
displayed  in  one  of  its  grandest  aspects,  and  simply  invites  us 
not  to  destroy,  but  to  put  upon  it  the  stamp  of  national  power 


Hon.  E.  F.  Dunne  of  Nevada  in  a  letter  to  Dr.  R.  W.  Raymond  (Dec. 
20,  1869)  described  the  situation  as  follows:  "Fortunately,  the  mining 
interest  was  ably  represented  in  Congress,  led  by  Senators  Stewart  of 
Nevada  and  Conness  of  California,  both  thorough  masters  of  the  subject. 
They  grappled  the  question  with  all  their  power,  knowing  it  was  a  matter 
of  life  or  death  to  the  regions  they  represented,  and,  after  a  desperate 
struggle,  defeated  the  highest  bidder  plan,  and  achieved  a  complete  victory 
for  the  principles  most  anxiously  desired  by  the  miners,  namely,  the 
recognition  of  their  mining  laws,  and  the  right  of  the  discoverer  of  a  mine 
to  purchase  the  title  from  the  government  at  a  reasonable  price.  No  matter 
how .  defective  the  bill  may  be  in  detail ;  no  matter  how  many  points  it 
leaves  entirely  untouched;  the  miners  will  ever  be  grateful  for  its  pass- 
age, for  in  that,  to  them,  memorable  session,  it  was  not  a  question  of 
detail  nor  perfection,  but  a  struggle  between  two  great  conflicting  principles, 
and  the  policy  desired  by  the  miners  prevailed."  Raymond,  Mineral 
Resources  (1870),  p.  423. 


456  CALIFORNIA  LAW  REVIEW 

and  unquestioned  authority."64 

The  language  of  Senator  Wm.  M.  Stewart  in  advocating  the 
passage  of  the  lode  law  of  1866  cannot  be  improved  upon,  for  it  is 
the  best  evidence  of  his  own  mental  operations  and  gives  us  the 
reasons  which  controlled  him  in  framing  the  Act  and  embodying  in 
it  the  extralateral  grant,  already  a  part  of  the  miners'  law.  The 
following  liberal  quotation  is  therefore  pardonable: 

"To  extend  the  pre-emption  system — applicable  to  agricul- 
tural lands — to  mines  is  absurd  and  impossible.  Nature  does 
not  deposit  the  precious  metals  in  rectangular  forms,  de- 
scending between  perpendicular  lines  into  the  earth,  but  in 
veins  or  lodes,  varying  from  one  foot  to  three  hundred  feet  in 
width,  dipping  from  a  perpendicular  from  one  to  eighty  de- 
grees, and  coursing  through  mountains  and  ravines  at  nearly 
every  point  of  the  compass.  In  exploring  for  vein  mines,  it 
is  a  vein  or  lode  that  is  discovered,  not  a  quarter  section  of 
land  marked  by  surveyed  boundaries.  In  working  a  vein 
more  or  less  land  is  required,  depending  upon  its  size,  course, 
dip,  and  a  great  variety  of  other  circumstances,  not  possible 
to  provide  for  in  passing  general  laws.  Sometimes  these  veins 
are  found  in  groups,  within  a  few  feet  of  each  other,  and 
dipping  into  the  earth  at  an  angle  of  from  thirty  to  fifty  de- 
grees, as  at  Freiberg,  Saxony,  or  Austin,  in  Nevada.  In  such 
case  a  person  buying  a  single  acre  in  a  rectangular  form  would 
have  several  mines  at  the  surface,  and  none  at  five  hundred 
or  a  thousand  feet  in  depth.  With  such  a  division  of  a  mine, 
one  owning  it  at  the  surface,  another  at  a  greater  depth, 
neither  would  be  justified  in  expending  money  in  costly  ma- 
chinery, deep  shafts  and  long  tunnels,  for  the  working  of  the 
same.  Nor  will  it  do  to  sell  the  land  in  advance  of  discovery, 
for  this  would  stop  explorations,  and  practically  limit  our 
mining  wealth  to  the  mines  already  found  for  no  one  would 
'prospect'  with  much  energy  upon  the  land  of  another,  and 
land  speculators  never  find  mines.  The  mineral  lands  must 
remain  open  and  free  to  exploration  and  development;  and 
while  this  policy  is  pursued  our  mineral  resources  are  inex- 
haustible. There  is  room  enough  for  every  prospector  who 
wishes  to  try  his  luck  in  hunting  for  new  mines  for  a  thou- 
sand years  of  exploration,  and  yet  there  will  be  plenty  of 
mines  undiscovered.  It  would  be  a  national  calamity  to  adopt 
any  system  that  would  close  that  region  to  the  prospector. 

"The  question  then  presents  itself,  how  shall  the  Govern- 
ment give  title,  so  important  for  permanent  prosperity,  and 
avoid  these  intolerable  evils  ?  I  answer,  there  is  but  one  mode, 
and  that  is  to  assure  the  title  to  those  who  now  or  hereafter 

64  Browne,   Mineral   Resources,   1867,   pp.  219-220. 


EXTRALATERAL  RIGHTS  457 

may  occupy  according  to  local  rules,  suited  to  the  character  of 
the  mines  and  the  circumstances  of  each  mining  district.  In 
the  increasing  agitation  of  the  subject  by  the  introduction  into 
Congress  of  bills  which  miners  regard  as  a  system  of  con- 
fiscation, and  which  tend  to  destroy  all  confidence  in  mining 
titles,  we  now  need  statutes  which  shall  continue  the  system 
of  free  mining,  and  hold  the  mineral  lands  open  to  the  explor- 
ation and  occupation,  subject  to  legislation  by  Congress  and 
local  rules ;  something  which  recognizes  the  obligation  of  the 
Government  to  respect  private  rights  which  have  grown  up 
under  its  tacit  consent  and  approval,  and  which  shall  be  in 
harmony  with  the  legislation  of  1865,  protecting  possessory 
rights,  irrespective  of  any  paramount  interest  of  the  United 
States.  The  system  will  be  in  harmony  with  the  rules  of 
property  as  understood  by  a  million  men,  with  the  legislation 
of  nine  States  and  Territories,  with  a  course  of  judicial  deci- 
sions extending  over  nearly  a  quarter  of  a  century,  and  finally 
ratified  and  confirmed  by  the  Supreme  Court  of  the  United 
States;  in  harmony,  in  short,  with  justice  and  good  policy." 
Appendix  No.  i,  70  U.  S.,  779,  780. 

During  the  course  of  the  debate  in  the  Senate  Senator  Stewart 
said: 

"He65  evidently  has  not  read  it  (the  bill),  and  has  fallen  into 
the  popular  prejudice  of  supposing  that  land  is  to  be  sold  in 
rectangular  form  between  perpendicular  lines.  It  has  been 
explained  that  this  cannot  be  done.  A  vein  pitches  into  a  hill, 
and  a  perpendicular  line  would  cut  it  up  into  pieces.  He 
speaks  of  that.  This  bill  provides  for  selling  the  vein  and 
following  it  into  the  earth,  with  its  natural  dips  and  angles/'66 
Senator  Conness  also  added : 

"I  desire  to  say  to  him,  (Senator  Williams  of  Oregon) 
in  this  connection,  that  vein  mines  do  not  enter  the  earth  by 
perpendicular  lines,  but  on  the  contrary,  have  what  are  called 
dips  or  slants  running  by  oblique  lines  into  the  earth ;  that  they 
follow  each  other  regularly  in  that  respect;  and  that  the  cus- 
tom now,  and  the  habit  everywhere,  and  the  law,  first 
determined  by  necessity,  by  the  fact,  next  by  the  population 
obeying  that  necessity,  next  by  the  local  courts  affirming  that 
necessity  by  their  decisions,  is  that  the  miner  is  authorized  to 
follow  every  vein  according  to  its  dips  and  angles  and  varia- 
tions. This  whole  bill  is  based  upon  the  principle  of  confirm- 


65  Referring  to  the  writer  of  a  letter  read  by  an  opponent  of  the  bill 
in  which  the  writer  stated  that  it  would  be  absurd  to  sell  quartz  mines  by 
subdivisions  with  vertical  boundaries  because  lode  mines  did  not  conform 
to  such   surface  allotments.     See   Congressional   Globe,  June    18,    1866,   pp. 
3451-2. 

66  Congressional  Globe,  June  18,  1866,  p.  3452. 


458  CALIFORNIA  LAW  REVIEW 

ing  what  has  grown  out  of  necessity,  the  wisest  system,  per- 
haps, that  could  possibly  be  devised,  which  is  the  work  of  the 
people  themselves.  Would  the  senator  want  to  enter  the 
earth  by  perpendicular  lines  so  that  a  man  who  owned  a 
claim  today,  after  he  had  descended  50  ft.  of  it,  should  leave 
it  to  the  ownership  of  another  man  tomorrow?"67 

The  Act  was  quite  universally  approved  in  the  West.  The 
Sacramento  Union  of  June  23,  1866,  said: 

"  .  .  .  .  this  bill  has  been  framed  with  a  more  intelligent 
regard  for  the  interests  of  the  people  of  the  Pacific  Coast  than 
any  other  previous  measure  that  we  can  now  recall,  and  it  is 
probable  that  its  provisions  can  be  executed  without  inflicting 
injury  upon  the  rights  which  accrued  under  the  policy  hitherto 
pursued  by  the  government." 

Governor  McCormick  of  Arizona,  in  his  annual  message 
delivered  to  the  legislature  October  8th,  1866,  said: 

"The  act  of  Congress  to  legalize  the  occupation  of  mineral 
lands,  and  to  extend  the  rights  of  pre-emption  thereto,  adopted 
at  the  late  session,  preserves  all  that  is  best  in  the  system 
created  by  miners  themselves,  and  saves  all  vested  rights  under 
that  system,  while  offering  a  permanent  title  to  all  who  desire 
it,  at  a  mere  nominal  cost.  It  is  a  more  equitable  and  prac- 
ticable measure  than  the  people  of  the  mineral  districts  had 
supposed  Congress  would  adopt,  and  credit  for  its  liberal  and 
acceptable  provisions  is  largely  due  to  the  influence  of  the 
representatives  of  the  Pacific  coast,  including  our  own  intelli- 
gent delegate.  While  it  is  not  without  defects,  as  a  basis  of 
legislation  it  is  highly  promising,  and  must  lead  to  stability 
and  method,  and  so  inspire  increased  confidence  and  zeal  in 
quartz  mining."68 

The  Virginia  Enterprise,  the  leading  journal  of  the  State  of 
Nevada,  on  July  13,  1866,  said  editorially: 

"The  Bill  proposed  nothing  but  what  already  exists,  except 
giving  a  perfect  title  to  the  owners  of  any  mine  who  may 
desire  it." 

When  we  come  to  analyze  the  Act  of  1866  we  find  that  it  is 
just  what  its  author  and  others  claimed  for  it,  merely  a  confirma- 
tion of  miners'  rules  and  regulations  with  the  added  feature  of 


67  Id.  p.  3234.     This  language  of  Senator  Conness  is  strikingly  similar 
to    arguments    of    some    of    the    French    Statesmen    in    the    Chamber    of 
Deputies  when   the   French  mining   law   of   1810   was   under    consideration. 
Halleck's  translation  of  De  Fooz  on  the  Law  of  Mines  had  already  been 
published    (1860)    on   the   Pacific   Coast   and   the   Senator   had   undoubtedly 
read  it.     See  4  California  Law  Review,  371-372. 

68  Browne,   Mineral   Resources    (1867),  p.  225. 


EXTRALATERAL  RIGHTS  459 

affording  an  opportunity  to  the  miner  of  securing  a  title  in  fee 
simple  to  his  mining  claim  through  issuance  of  a  patent. 

Section  one  of  the  Act  confirmed  what  had  theretofore  been 
tacitly  accepted  as  the  fact,  that  mineral  lands  of  the  public  domain 
were  free  to  prospectors  and  miners,  subject  to  statutory  regula- 
tion and  "also  to  the  local  customs  or  rules  of  miners  in  the  several 
mining  districts"  etc. 

Section  two  provided  that  when  "a  vein  or  lode  of  quartz,  or 
other  rock  in  place,  bearing  gold,  silver,  cinnabar  or  copper/'  has 
been  taken  up  "according  to  the  local  customs  or  rules  of  miners 
in  the  district  where  the  same  is  situated"  and  not  less  than  one 
thousand  dollars  expended  thereon,69  the  claimant  might  "file  in  the 
local  land  office  a  diagram  of  the  same,  so  extended  laterally  or 
otherwise  as  to  conform  to  the  local  laws,  customs,  and  rules  of 
miners"  and  "receive  a  patent  therefor,  granting  such  mine, 
together  with  the  right  to  follow  such  vein  or  lode,  with  its  dips, 
angles  and  variations™  to  any  depth,  although  it  may  enter  the 
land  adjoining,  which  land  adjoining  shall  be  sold  subject  to  this 
condition."71 

Section  three  is  concerned  with  the  detailed  procedure  for 
acquiring  a  patent. 

Section  IV  provided  ....  "that  no  location  hereafter 
made  shall  exceed  two  hundred  feet  in  length  along  the  vein 
for  each  locator,  with  an  additional  claim  for  discovery  to  the 
discoverer  of  the  lode,  with  the  right  to  follow  such  vein  to 
any  depth,  with  all  its  dips,  variations  and  angles,  together 


69  The    Reese    River    and    other    district    laws    of    1863    provided    that 
"Whenever  one  thousand  dollars  shall  have  been  expended"  on  a  claim,  it 
"shall   be   deemed   as  belonging  in    fee   to   the   locators   thereof    and   their 
assigns"    etc.    Senator   Stewart   is    supposed   to   have   modeled   the   Act   of 
1866    upon    the    Reese    River    district    regulations    and    the    fact    that    this 
precedent  in  the  Reese  River  rules  exists  is  at  least  corroborative  evidence 
to  support  this  view.     Vol.  XIV  Tenth  U.  S.  Census,  pp.  525,  533,  showing 
that  this   same  principle  and  amount  had  been  adopted  in  Placer  County, 
California,  in  1863,  and  in  the  Genoa  Mining  District,   Nevada,   during  or 
prior  to  1860.     See  Bancroft's  Handbook  of  Mining   (1861),  p.  203.     The 
same  principle  is  to  be  noticed  in  Grass  Valley,  Nevada  County,  in   1852. 
Vol.  XIV  Tenth  U.  S.  Census,  p.  330.     See  also  pp.  310-11. 

70  The  Sutro  Tunnel  Act,  14  U.  S.  Stats.  242,  of  July  25,  1866,  passed 
by  Congress  one  day  prior  to  this  main  lode  Act  of  1866  used  the  language 
"dips,  spurs  and  angles"  as  applied  to  the  Comstock  lode  and  veins  which 
might  be  intersected  by  the  tunnel. 

71  Julien,  who  bitterly  opposed  the  passage  of  this   act  in  the  House, 
said   of   this    extralateral    feature    "  .  .  .  .  this    bill    overturns    the    common 
law  of  the  world,  by  allowing  one  man  to  run  half  a  mile  under  the  land 
of  another."    Congressional  Globe   (July  23,  1866),  p.  4050. 


460  CALIFORNIA  LAW  REVIEW 

with  a  reasonable  quantity  of  surface  for  the  convenient  work- 
ing of  the  same,  as  fixed  by  local  rules;  and  provided  further, 
that  no  person  may  make  more  than  one  location  on  the  same 
lode,  and  not  more  than  three  thousand  feet  shall  be  taken  in 
any  one  claim  by  any  association  of  persons.72 

The  balance  of  the  sections  of  the  act  related  to  mining  matters 
of  subordinate  importance  and  to  rights  of  way  for  ditches  and 
canals  on  the  public  domain,  etc. 

It  is  quite  clear  that  the  act  did  not  interfere  materially  with 
the  operation  of  the  miner's  rules  and  customs  and  instead  of 
abridging  the  powers  of  these  local  law-making  bodies,  the  act 
repeatedly  places  the  stamp  of  approval  on  their  functions  and 
existence73  It  is  true  that  the  act  did  prescribe  what  should  be 
the  lawful  maximum  length  of  a  lode  claim  thereafter  made  but  it 
has  already  been  pointed  out  that  this  limitation  of  "two  hundred 
feet  in  length  along  the  vein  for  each  locator"74  had  been  adopted 
almost  universally  throughout  the  West  in  the  mining  districts  and 
by  the  state  and  territorial  legislatures,  as  the  linear  measure- 
ment for  lode  claims  except  in  the  older  districts,  where  one 
hundred  feet  had  been  the  rule.  The  limitation  of  "one  location 
on  the  same  lode"  for  each  locator  was  also  a  rule  in  force  in 
nearly  all  the  districts  and  also  adopted  by  the  legislatures.  The 
"additional  claim  for  discovery  to  the  discoverer"  was  also  a 
universally  accepted  regulation.  The  granting  of  "the  right  to 
follow  such  vein  or  lode,  with  its  dips,  angles  and  variations,  to  any 
depth"  was  not  as  we  have  seen,  the  creation  of  a  new  right,75  but 


72  All  of  these  provisions  were  already  in  force  in  a  vast  majority  of 
the  mining  districts,  excepting  possibly  the  last  limitation   of   3000   feet  as 
the  maximum  length  for  a  company.     Even  this  was  foreshadowed  in  local 
rules  for  a  maximum  length  of  2400  feet  had  already  been  prescribed.     Vol. 
XIV  Tenth  U.  S.  Census,  p.  616.     And  see  also  similar  legislation  in  Mon- 
tana,   (Act  of  Dec.  26,  1864,  limiting  length  to  1000  feet  in  each  direction 
from    the    discovery    claim)  ;    Colorado,    (Act    of    Mar.    11,    1864,    limiting 
length  to  sixteen   100  foot  claims,  and  Act  of  Feb.  9,   1866,  limiting  length 
of  a  claim  to  1400  feet)  ;  Nevada,  (Act  of  Feb.  27, 1866,  limiting  length  of  a 
claim  to  2000  feet)  ;  and  New  Mexico,   (Act  of  Jan.  18,  1865,  limiting  the 
length  of  a  company  claim  to  1500  feet). 

73  During  the  course  of  the  Senate  debate  on  this  bill,  Senator  Stewart 
said:    "All  there  is  in  this  bill  is  a  simple  confirmation  of  the  existing  con- 
dition  of  things   in   the  mining  regions,    leaving   everything   where   it   was, 
indorsing  the  mining  rules."  Congressional  Globe  (June  18,  1866)   p.  3234. 

74  In   the   bill    as   originally   drafted,   this   length   was    300    feet.     Con- 
gressional Globe   (June  18,  1866),  p.  2225. 

75  The  anathema  that  has  been  heaped  upon  the  f  ramers  of  the  Law  of 
Apex  is  amusing  to  one  familiar  with  the  real  facts  underlying  its  origin. 
"The  Law  of  Apex,  this  monumental  blunder  of   experimental   legislation" 
.  .  .  .  "begotten  in  bland  self-complacent  ignorance  by  a  group  of  opulent 


EXTRALATERAL  RIGHTS  461 

was  language  taken  bodily  from  the  miners'  rules  and  regulations 
themselves,  and  which  had  already  become  the  "law  of  the  land" 
throughout  the  entire  West  except  in  a  few  mining  districts  adher- 
ing to  the  square  surface  claim  with  vertical  boundaries.  The  dis- 
tricts where  the  extralateral  right  was  not  in  force  were  the  rare 
exception,  and  the  words  "dips,  spurs,  angles  and  variations"  had 
long  since  become  common  mining  parlance76  and  were  employed 
every  day  in  conveyances  of  interests  in  lode  claims.77  As  already 
noted,  the  legislatures  of  most  of  the  Western  States  and  Terri- 
tories had,  prior  to  the  passage  of  the  Act  of  1866,  also  enacted 
statutes  along  the  lines  of  the  local  miners'  laws,  and  the  extra- 
lateral  right  had  become  so  thoroughly  a  part  of  the  mining  law 
of  the  West,  that  in  1866  to  have  disassociated  the  idea  of  extra- 
lateral  right  from  lode  mining  would  have  been  unthinkable.78  If 
Senator  Stewart,  on  whose  head  so  much  uninformed  abuse  has 
been  undeservedly  heaped,  had  in  1866  urged  Congress  to  abolish 
the  extralateral  right,  instead  of  urging  its  acceptance,  not  only  his 
Nevada  constituents,  but  the  first  mining  community  he  happened 
to  pass  through  on  his  return  from  Washington  would  undoubtedly 


mechanics"  ....  guilty  of  "foisting  upon  the  mining  public  of  a  great 
domain  your  ill-advised  and  flimsy  statutes," — so  writes  a  critic  in  Economic 
Geology,  Vol.  I,  No.  6  (July,  1906),  p.  572  et  seq.  Usually  this  crime  is 
charged  on  Senator  Stewart  who  framed  the  Act  and  took  a  leading  part 
in  the  Comstock  litigation.  As  late  as  the  issue  of  June  10,  1916,  the 
Mining  &  Scientific  Press  (p.  850)  contains  a  letter  from  a  correspondent 
in  which  he  refers  to  "the  principle  of  the  extralateral  right  as  having  been 
evolved  from  the  brain  of  a  capable,  brilliant  lawyer  and  through  his 
remarkable  ability  and  powers  of  persuasion  made  to  serve  his  ends,"  and  adds 
"it  has  continued  on  its  pernicious  course  nearly  50  years."  The  shades  of 
the  pioneers  of  1851  would  resent  such  credit  being  given  to  a  lawyer 
fifteen  years  later,  for  in  many  of  the  mining  camps,  lawyers  were 
expressly  prohibited  from  practicing.  "No  lawyer  shall  be  permitted  to 
practice  law  in  any  court  in  the  district  under  penalty  of  not  more  than 
fifty  nor  less  than  twenty  lashes  and  be  forever  banished  from  the  dis- 
trict." (By-laws  of  Dec.  10,  1860,  Union  Mining  District,  Clear  Creek 
County,  Colorado.  Vol.  XIV  Tenth  U.  S.  Census,  p.  373.  See  also,  p.  411). 
This  is  one  original  sin  which  the  lawyers  cannot  be  charged  with.  They 
usually  frame  most  legislation  but  the  democratic  mining  camp  usurped  this 
privilege  in  the  case  of  the  extralateral  right. 

76  See  Bullion  Mining  Co.  v.  Croesus  Mining  Co.    (1866),  2  Nev.  168, 
176.     Mark  Twain  wrote:     "I  have  been  through  the  California  mill,  with 
all  its  dips,   spurs  and  angles,  variations  and   sinuosities.     I   have   worked 
there    at    all    the    different    trades    known    to    the    catalogue."      American 
Stationer. 

77  Congdon's  Mining  Laws  and  Forms    (1864),  p.   168,   San   Francisco, 
uses  the  words  "dips,  spurs  and  angles"  in  standard  form  of  mining  deed. 

78  As  Senator  Conness  said  in  the  Senate  debate  on  the  part  of  the  bill 
conferring  extralateral  rights:  "That  simply  is  no  change;  it  is  the  law  of 
the  mines  now."     Congressional  Globe  (June  18,  1866)  p.  3234. 


462  CALIFORNIA  LAW  REVIEW 

have  met  him  with  a  delegation,  politely  described  in  the  pioneer 
days  as  a  "neck-tie  party,"  or  at  least  they  would  have  carried  a 
rail  and  a  goodly  supply  of  tar  and  feathers.  To  have  ignored  the 
extralateral  right  in  those  days  would  have  meant  to  unsettle  the 
title  to  virtually  all  of  the  countless  thousands  of  lode  claims 
which  had  already  been  acquired  throughout  the  West.  If  any  sin 
was  committed  in  perpetuating  the  extralateral  right,  the  pioneer 
miners  of  the  West,  and  the  legislatures  of  the  Western  States  and 
Territories,  and  not  Senator  Stewart,  were  primarily  responsible. 
All  that  he  added  to  the  laws  created  by  these  pioneers,  was  the 
privilege  of  securing  a  fee  simple  title  through  patent.  Whether 
they  accepted  even  this  desirable  feature  or  not  remained  entirely 
optional  with  them,  for  they  might  continue  to  hold  their  claims 
under  the  possessory  title  afforded  by  their  locations  exactly  as 
they  had  been  doing  up  to  that  time  under  their  own  local  laws.  A 
very  few  districts  had  to  change  their  rules  and  recognize  that 
quartz  locations  made  after  the  passage  of  the  act79  must  conform 
to  the  prescribed  two  hundred  foot  length  along  the  lode  for  each 
claimant,  but  as  we  have  seen,  this  had  already  become  the  univer- 
sally accepted  length  and  most  of  the  state  and  territorial  laws 
had  already  anticipated  the  federal  act,  so  this  limitation  was  not 
an  innovation.  The  extralateral  right  as  already  noted,  had  also 
become  a  characteristic  feature  of  practically  all  of  the  mining 
districts  and  the  Act  of  1866  in  recognizing  it,  continued  the  grant 
of  the  right  in  the  identical  language  employed  by  the  great 
majority  of  the  local  regulations  and  western  legislatures  so  that 
few  districts  had  to  change  their  laws  in  this  respect.80 

It  is  not  the  province  of  this  article  to  discuss  the  workings  of 
the  Act  of  1866  and  the  interpretation  placed  by  the  courts  on  the 
rights  conferred  by  the  Act.  The  very  excellent  treatises  on  the 
subject  of  mining  law  are  referred  to  for  this  information.81  It  is 
interesting  to  note  in  passing,  that  the  Act  of  1866  did  not  pre- 
scribe the  manner  of  determining  the  direction  of  the  end  bound- 


79  Claims  located  prior  to  the  passage  of  the  Act  were  governed  by  the 
local  laws  as  to  length.     1  Copp's  Land  Owner,  p.  83. 

80  "Usually  a  quartz  claim  follows  the  lode  as  deep  into  the  earth  as  it 
may  go",  (p.  184)  ....  "quartz  claims  ordinarily  follow  the  lode,  with  its 
dips  and  angles,  to  the  full  extent  of  its  depth,"   (p.   186).     Hittell,  Hand 
Book  of  Mining  for  the  Pacific  States  (1861). 

81Lindley  on  Mines  (3rd  ed.  1914),  §§  53-61,  566-577a;  Costigan  on 
Mining  Law  (1908),  pp.  14-18,  415-417;  Morrison's  Mining  Rights  (14th  ed. 
1910),  p.  198. 


EXTRALATERAL  RIGHTS  463 

aries  of  the  length  of  vein  located.  Naturally  the  ascertainment  of 
the  longitudinal  limits  of  the  segment  of  vein  carved  out  in  depth, 
became  important.  The  land  department  issued  instructions  pro- 
viding that  when  not  agreed  upon  between  adjoining  claimants  nor 
fixed  by  local  rules,  the  end  lines  "shall  be  drawn  at  right  angles 
to  the  ascertained  or  apparent  general  course  of  the  vein  or  lode."82 
It  is  strange  that  none  of  the  district  regulations  seem  to  have  pro- 
vided the  method  of  determining  the  exact  measure  of  this  right 
to  mine  in  depth.  Judge  Field  in  the  celebrated  Eureka  Case83 
stated  the  proposition  as  if  it  were  one  already  generally  accepted, 
that, 

"Lines  drawn  down  through  the  ledge  or  lode  at  right 
angles  with  a  line  representing  this  general  course  at  the  end 
of  the  claimant's  line  of  location  will  carve  out,  so  to  speak,  a 
section  of  the  ledge  or  lode  within  which  he  is  permitted  to 
work  and  out  of  which  he  cannot  pass." 

This  view  was  later  upheld  in  the  Argonaut-Kennedy  case.84  The 
interesting  feature  of  this  situation  is  the  fact  that  in  both  Derby- 
shire and  in  Germany  the  laws  granting  the  extralateral  right  were 
equally  indefinite  regarding  these  end  bounding  planes  and  in  each 
country  the  generally  accepted  custom  was  to  lay  out  the  end  line 
planes  at  right  angles  to  the  general  course  of  the  vein.85 

The  Act  of  1866  was  also  found  wanting  in  other  respects.  The 
fact  that  no  lateral  surface  width  for  a  claim  was  prescribed  by  its 
terms  gave  rise  to  great  confusion  and  resulted  in  applications  for 
patents  for  claims  of  all  conceivable  shapes.86  The  restriction  that 
only  one  lode  or  vein  could  be  owned  in  a  claim  also  gave  rise  to 
endless  disputes  and  litigation.87 

No  one  had  claimed  that  the  Act  of  1866  was  perfect.  It  was 
hastily  prepared  to  forestall  contemplated  drastic  legislation  which 
would  have  seriously  crippled  the  mining  industry  in  the  West  and 

82  Yale,  Mining  Claims,  p.  360. 

83  (1877),  4  Sawy.  302,  Fed.  Cas.  4548. 

84  Argonaut  Mining  Co.  v.  Kennedy  Mining  Co.   (1900),  131  Cal.  15,  63 
Pac.  148,  affirmed  on  other  grounds  in  Kennedy  Mining  Co.  v.  Argonaut 
Mining  Co.  (1903),  189  U.  S.  1,  47  L.  Ed.  685.    This  decision  was  the  first 
to    definitely    determine    the    extent    of    the    extralateral    grant,    and    was 
rendered  fifty  years  after  the  right  was  initiated.    See  also  pp.  99,  52,  Lord 
U.  S.  G.  S.  Monograph  IV. 

8M  California  Law  Review,  366,  375-6,  n.  13  and  14,  378,  n.  42. 

86  See  Lindley  on  Mines,  §  59. 

87  Senator  Stewart  remarked  in  the  debate  on  the  Act  of  1872 :    "Now, 
for  want  of  a  more  definite  rule  the  whole  region  is  in  litigation.     Every 
man  who  goes  West  to  locate  a  claim  finds  so  much  local  legislation  which 
is  uncertain  that  he  is  discouraged ;  he  finds  the  neighborhood  in  litigation." 


464  CALIFORNIA  LAW  REVIEW 

was  generally  recognized  as  being  crude  and  incomplete,  though  "a 
step  in  the  right  direction."  Senator  Stewart  later  prepared  a  bill 
calculated  to  remedy  the  objections  to  the  Act  of  1866  already 
noted,  and  which  passed  the  Senate,  February  8th,  1871,  but  failed 
in  the  House  for  lack  of  time.88  This  bill  contained  many  of  the 
features  of  the  subsequent  Act  which  was  adopted  in  1872.  It  con- 
tained an  interesting  clause  not  found  in  the  Act  of  1872,  pro- 
viding not  only  that  the  end  lines  should  be  parallel  but  also  that 
they  should  be  "at  right  angles  with  the  general  course  of  the 
vein."89 

A  discussion  of  the  Federal  Act  of  1872  which  superseded  the 
Act  of  1866  and  which  is  the  mining  law  now  in  force  in  the 
Western  States  is  appropriately  reserved  for  separate  presentation. 

Wm.  E.  Colby. 

Berkeley,   California. 


The  various  objections  to  the  Act  of  1866  and  a  detailed  discussion  of  its 
shortcomings  as  well  as  recommendations  for  curative  legislation  are  to  be 
found  in  Raymond,  Mineral  Resources  (1870),  pp.  421-444. 

88  Senator    Stewart    in    the    debate    that    preceded    its    passage    in    the 
Senate  said:     "This  bill  makes  no  change  in  the  principles  of   legislation 
heretofore  had  as  to  mining  claims,  except  that  it  limits  in  certain  instances 
the  rights  of  miners  to  make  laws   for  themselves  and  defines  the   shape 
of  their  claims  more  definitely.     It  is  a  bill  that  has  been  sent  out  five  or 
six  times  in  various  forms  through  the  mining  states  and  territories."    Con- 
gressional Globe,  February  8,  1871. 

89  This  bill  is  set  forth  in  Raymond,  Mineral  Resources  (1872),  pp.  496- 
499,  and  is  followed  by  an  interesting  comment  by  Raymond,  pp.  499-502. 
Dr.   Raymond  had  already  prepared   a  draft  of   a  bill   along  similar  lines. 
Mineral  Resources,   (1870),  pp.  442-444.     Hon.  E.  F.  Dunne  of  Nevada,  at 
Raymond's  request,  had  also  prepared  a  bill  providing  that  the  owner  of  a 
patented  claim  might  follow  his  vein  into  the  tract  adjoining  and  "shall  be 
entitled  to  all  mineral  within  twenty  feet  of  the  walls  of  said  vein."     (Id. 
p.  436).     This  is  the  only  suggestion  of  the  adoption  in  America  of  the 
Germanic  form  of  extralateral  right  that  has  come  to  the  writer's  attention. 


California  Law  Review 


Volume  V  NOVEMBER,   1916  Number  1 


The  Extralateral  Right:  Shall  It 
Be  Abolished? 


I 


The   Extralateral    Right:    Shall  It 
Be  Abolished? 

III.     THE  FEDERAL  MINING  ACT  OF  1872. 

It  was  generally  recognized  that  the  law  of  1866  was  a  long 
step  in  the  right  direction,  inasmuch  as  it  gave  explicit  federal 
sanction  to  mining  on  the  public  domain  and  thus  set  at  rest  any 
question  as  to  what  attitude  the  government  would  take  toward  the 
miners  who  were  for  eighteen  years  prior  to  its  passage  technical 
trespassers.1  Everyone  recognized  that  the  Act  of  1866  had  been 
hastily  prepared  and  passed  to  meet  an  emergency  and  thus  forestall 
legislation  hostile  to  the  mining  interests.  Senator  Stewart  himself 
in  urging  the  bill  of  1871  in  the  Senate  referred  to  the  bill  "as 
an  amendment  to  the  law  of  1866  that  was  passed  through  in  rather 
a  crude  state."2  In  the  next  Congress  Senator  Stewart  was  again 
the  leader  in  framing  the  bill  which  during  that  session  became  the 
Act  of  1872  and  was  its  most  active  champion.  A  draft  of  a  pro- 
posed act  had  previously  been  sent  through  the  mining  districts  for 
criticism  and  the  discussion  had  covered  a  period  of  two  or  three 
years. 

The  bill  which  had  passed  the  Senate  in  1871  was  reintroduced 
in  the  next  session  of  Congress  and  passed  the  House.3  This  bill 

XA  similar  situation  has  but  recently  arisen  on  the  public  domain  in 
connection  with  the  immensely  valuable  oil  lands  of  California  and  Wyom- 
ing. Oil  miners  had  gone  on  the  public  lands,  though  in  this  case  at  the 
invitation  of  the  government,  and  expended  fortunes  in  some  instances  in 
developing  oil.  The  placer  mining  law  was  plainly  unsuited  to  these  novel 
conditions,  where  discovery  of  the  oil  lying  at  great  depth  required  large 
capital  and  considerable  time.  Many  claimants  failed  to  comply  with  all 
of  the  technical  requirements  of  this  law  and  while  certain  remedial  legisla- 
tion was  passed  by  Congress  to  improve  the  situation,  the  federal  govern- 
ment has  more  recently  treated  these  operators  as  trespassers  and  now 
seeks  not  only  to  eject  them  from  these  lands  but  also  to  recover  the  value 
of  the  oil  theretofore  extracted.  This  reversal  of  the  liberal  policy  adopted 
by  Congress  in  1866  is  due  to  the  growth  of  the  idea  that  the  best  interests 
of  the  public  demands  the  reservation  and  control  by  the  federal  govern- 
ment of  all  natural  resources  which  are  vital  to  the  future  welfare  of  the 
nation  and  that  this  new  policy  is  especially  applicable  to  lands  containing 
petroleum  which  is  in  demand  for  use  in  the  navy.  3  California  Law 
Review,  272-291. 

2  Congressional  Globe,  Feb.  6,  1871,  p.  978. 

3  Dr.  Raymond  in  commenting  on  this  bill  said :     "In  its  main  features 
it  is  an  eminently  wise  and  salutary  measure.     Senator   Stewart  has  dis- 
played both  courage  and  judgment  in  its  preparation,   and   has   given   new 
proof   of   intelligent,   earnest   devotion  to  the  true  interests  of   the  mining 
industry.    Raymond,  Mineral  Resources  (1872),  p.  502. 


EXTRALATERAL  RIGHTS  19 

left  the  length  of  lode  claims  the  same  as  under  the  Act  of  1866  but 
provided  for  a  maximum  width  of  three  hundred  feet  on  each 
side  of  the  middle  of  the  vein  at  the  surface  and  prescribed  that 
the  end  lines  should  be  parallel  and  at  right  angles  with  the  general 
course  of  the  vein.4 

After  the  bill  had  passed  the  House,  the  Senate  Committee  on 
Mines  and  Mining  evidently  did  its  real  work.  The  various 
features  of  the  law  that  required  changing  were  extensively 
debated.  There  appeared  before  this  Committee  representatives  of 
the  mining  interests  of  the  West. 

Senator  Alcorn  of  Mississippi  had  charge  of  the  bill  as  chairman 
of  the  Committee  and  while  disclaiming  any  special  knowledge 
of  the  subject,  yet,  as  a  matter  of  accomodation,  stood  sponsor  for 
the  measure  when  it  came  before  the  Senate,  saying: 

"This  bill  has  been  considered  by  the  Committee  with  great 
care,  each  section  of  the  bill  has  been  discussed,  and  the 
result  is  that  the  report  embodies  the  intelligence  brought  to 
the  Committee  by  various  persons  who  appeared  before  it  in 

the   interests   of    the   mining   districts As    to    its 

practical  working,  I  will  only  say  that  it  is  in  conformity 
with  what  seems  to  be  the  settled  policy  of  the  Government 
with  regard  to  mining."5 

Senator  Stewart,  who  was  the  real  advocate  of  the  bill 
in  its  revised  form — the  form  which  was  substituted  for  the 
House  bill,  already  passed  by  that  body, — outlined  the  gen- 
eral situation  leading  up  to  its  framing  as  finally  presented 
for  passage.  His  years  of  experience  with  actual  conditions 


4  Congressional  Globe  (Jan.  23,  1872),  p.  533.    Mr.  Sargent  representing 
California,  who  had  charge  of  this  bill   in  the  House,   urged   its  passage 
saying :    "  .  .  .  .    The  bill  does  not  make  any  important  changes  in  the  min- 
ing  laws    as    they    have    heretofore    existed.      It    does    not    change   in    the 
slightest  degree  the   policy   of   the   Government   in   the   disposition   of   the 

mining  lands Now,  although  the  legislation  of  1866  was  extremely 

imperfect  in  the  machinery,  which  since  that  time  we  have  been  trying  to 
improve  so  that  it  might  be  easier  for  miners  to  avail  themselves  of  the 
benefits   intended    to   be   conferred   upon   them   by   law,    yet    it    showed   to 

observers   that  the   system  was   correct This   bill    simply  oils   the 

machinery  a  little;  it  does  not  change  the  principles  of  the  law;  it  does  not 
change  the  tenures;  ....     Congressional  Globe,  Feb.  6,  1871,  p.  978. 

In  urging  the  passage  of  the  Placer  Act  of  1870,  Sargent  had  used  the 
following  language  in  describing  the  origin  of  these  mining  laws:  "The 
original  title  or  possession  depended  upon  mining  laws — a  code  originally 
written,  modified  afterward  by  custom — a  code  as  well  settled  and  under- 
stood by  our  courts  and  by  the  miners  themselves  as  is  the  Common  Law  of 
England  by  the  Courts  of  the  United  States — a  code  eminent  for  its  wisdom, 
perfected  by  long  experience,  and  admirably  adapted  to  the  conditions  and 
necessities  of  the  people  among  whom  it  originated." 

5  Congressional  Globe,  April  16,  1872,  p.  2460. 


20  CALIFORNIA  LAW  REVIEW 

in  the  mining  districts  of  the  West  and  his  active  interest  in 
mining  legislation,  ever  since  he  took  the  leading  part  in  secur- 
ing the  adoption  of  the  Act  of  1866,  add  immeasurably  to  the 
weight  of  his  views,  which  were  as  follows : 

"  ....  In  the  first  instance  the  miners  legislated 
for  themselves.  Congress  finally  in  1866  passed  a  bill  em- 
bodying many  of  the  principles  of  this  bill,  and  from  that  time 
to  this  the  Land  Office  has  been  operating  under  it,  and  for  the 
last  three  years  we  have  been  attempting  to  codify  it  and  bring 
it  into  a  shape  that  will  be  satisfactory  and  more  certain  and 
correct  abuses.  Last  year  a  bill  was  introduced  here  and 
passed  which  was  quite  similar  to  this.  A  bill  has  passed  the 
House  which  is  similar  to  the  one  that  passed  here  last  winter. 
Since  its  passage  by  the  House  the  Delegates  from  the  Terri- 
tories and  those  familiar  with  mining  rules  have  had  a  great 
many  meetings  over  this  bill  in  connection  with  the  Committee 
on  Mines  and  Mining,  and  the  result  is  a  codification,  which  is 
the  best  they  can  do.  I  believe  it  will  meet  with  universal 
favor.  It  is  a  very  important  bill  to  be  passed  to  prevent  liti- 
gation and  give  certainty  to  mining  enterprises.  It  provides 
for  a  very  large  district  of  country  where  there  are  important 
interests  dependent  upon  it  which  are  now  in  a  very  uncertain 
condition  involving  litigation.  This  is  the  best  we  can  get 
with  all  the  experience  we  can  bring  to  bear.  It  is  no  one 
man's  work,  but  it  is  the  work  of  a  great  many  men  interested 

in  this  business "6 

When  the  bill  as  amended  in  the  Senate  came  up  in  the  House 
for  re-passage,  Representative  Sargent  of  California  made  the  fol- 
lowing comment : 

".     .     .     .     the  variations  from  the  bill  as  passed  by  the 

House    are    very    trifling 7      In    the     Senate    the 

Committee  on  Mines  and  Mining  and  the  Delegates  and 
members  of  the  House  from  the  mining  Territories  and  States, 
aided  that  Committee  in  perfecting  the  bill  and  improving  its 
machinery.  The  bill  is  now  entirely  satisfactory  to  every 
Delegate  and  every  member  of  the  mining  States  and  Terri- 
tories, as  well  as  to  the  Committee  on  Mines  and  Mining  of 
this  House."8 

The  bill  as  amended  passed  without  any  great  opposition.  In 
fact  the  main  debate  and  criticism  came  from  Western  members 
of  Congress  who  were  not  entirely  satisfied  with  some  of  the 
changes  made  in  the  original  bill  by  the  Senate  amendments.  The 

•  Id.  p.  2457. 

7  As  a  matter  of  fact  they  were  not  as  trifling  as  Mr.  Sargent  would 
have  led  his  colleagues  to  believe. 
a  Id.  p.  2897. 


EXTRALATERAL  RIGHTS  21 

right  of  free  mining  was  not  seriously  challenged  and  the  subject 
of  the  extralateral  right  which  was  again  confirmed  by  the  new  act 
was  not  mentioned  in  the  debates  in  Congress,  an  indication  that  no 
objections  of  consequence  had  as  yet  been  made  against  the  con- 
tinued exercise  of  this  right.9 

The  Act  of  i872,10  again  confirmed  the  right  of  free  mining  on 
the  public  domain  that  had  already  been  recognized  in  the  Act  of 
1866.  While  the  Act  of  1872  was  intended  to  limit  the  operation 
of  the  miners'  rules  and  regulations  and  make  the  mining  law 
throughout  the  West  more  uniform  by  prescribing  in  greater 
detail  the  specific  acts  of  location,  yet  the  first  section  of  the  act 
expressly  provided  that  mineral  lands  might  be  acquired 

"under  regulations  prescribed  by  law,  and  according  to  the 
local  customs  or  rules  of  miners,  in  the  several  mining  dis- 
tricts, so  far  as  the  same  are  applicable  and  not  inconsistent 
with  the  laws  of  the  United  States." 

In  this  connection  the  following  was  said  during  the  Senate 
debate  on  the  bill : 

Mr.  Trumbull    (of  Illinois). 

"  ....  as  I  understand,  it  adopts  as  law  the  regu- 
lations which  the  miners  may  make,  which  may  be  as  various 
as  the  mines." 

Mr.  Stewart. 

"Allow  me  to  say  that  the  old  law   (Act  of  1866)   adopts 
them.     One  of  the  difficulties  is  that  they  have  legislated  too 
extensively  since  the  adoption  of  that  law.     This  curtails  their 
power  of  legislation,  cuts  it  down  to  to  a  very  small  extent, 
takes  away  most  of  it,  takes  anything  that  can  be  prejudicial, 
and  prescribes  the  rule  so  that  their  legislation  cannot  interfere 
with  it.    That  is  the  main  object  of  the  bill." 
Section   2,    provided    that    quartz    or    lode    claims    theretofore 
located  should  be 

"governed  as  to  length  along  the  vein  or  lode  by  the  customs, 
regulations,  and  laws  in  force  at  the  date  of  their  location. 

9  When  the  Placer  Act  of  1870  was  before  the  House,  Julien  of  Ohio, 
who  had  bitterly  opposed  the  passage  of  the  Act  of  1866,  could  not  resist 
the  opportunity  to  vent  again  his  hostility,  and  speaking  of  the  extralateral 
grant  of  the  latter  Act   said:    "I   admit  that  there  may  be   a   hardship   in 
allowing  a  man  to  discover  and  hold  a  lode  or  vein  of  mineral  which  can 
be  traced  to  the  land  of  another  from  which  he  is  debarred.     There  is  hard- 
ship in  that ;  but  there  is  far  greater  hardship  in  the  law  as  it  now  stands, 
recognizing  the  right  everywhere  to  pursue  a  vein  or  lode  on  the  land  of 
another,    inasmuch    as   it   breeds   interminable    litigation    and   never    can   be 
resorted  to  as   a  method  of   settling  titles  to  these  lands."     Congressional 
Globe,  March  17,  1870,  p.  2029. 

10  U.  S.  Stats,  at  Large,  p.  91  et  seq. 


22  CALIFORNIA  LAW  REVIEW 

A  mining  claim  located  after  the  passage  of  this  Act,  whether 
located  by  one  or  more  persons,  may  equal,  but  shall  not 
exceed,  one  thousand  five  hundred  feet  in  length  along  the 
vein  or  lode " 

As  already  noted,  when  the  bill  to  amend  the  Act  of  1866  passed 
the  Senate  in  the  previous  session  of  Congress,  and  when  the  bill, 
which,  as  afterwards  amended,  became  the  Act  of  1872,  was 
reintroduced  in  the  next  session  and  first  passed  the  House,  it  left 
the  length  of  the  lode  claims  unchanged,  that  is,  two  hundred 
feet  along  the  vein  for  each  locator  and  a  maximum  length  of 
three  thousand  feet  in  one  claim  for  an  association  of  persons. 
The  reasons  for  making  this  change  were  stated  by  Senator 
Stewart  in  the  course  of  the  debate  on  the  bill  to  be  as  follows : 

"  ....  In  the  Act  of  1866  it  is  true  that  the  locator 
was  confined  to  two  hundred  feet,  and  two  hundred  feet  ad- 
ditional for  the  discoverer  of  the  lode,  making  four  hundred 
feet.  It  allowed  him  to  unite  in  companies  until  they  got  three 
thousand  feet.  In  practical  operation  it  is  thought  by  the 
Delegates  generally,  and  that  is  the  experience,  that  three 
thousand  feet  is  longer  than  can  be  worked  at  one  place  con- 
veniently, but  fifteen  hundred  feet  makes  a  very  reasonable 
claim.  The  practice  under  the  other  law  was  for  them  to  put 
in  fictitious  names  and  buy  them  out,  and  you  could  not  pre- 
vent them  doing  it.  This  matter  was  discussed  considerably; 
we  had  several  meetings  on  this  point  and  the  committee 
thought  it  was  best  to  let  them  do  directly  what  was  reason- 
able, and  not  have  them  do  anything  indirectly.11  It  is  a  matter 
to  which  I  am  not  especially  wedded,  but  it  was  the  result  of 
three  or  four  meetings  of  all  the  parties  interested  as  to  which 
plan  should  be  adopted,  and  this  was  the  one  which  was 
selected." 

Mr.  Cole,  (one  of  the  Senators  from  California). 

"I  have  heard  the  Senator's  explanation,  and  it  is  not 
satisfactory  to  me  at  all,  because  I  know  by  the  rules  of 
miners  claiming  the  mines  upon  these  ledges  for  a  long  time, 

11  It  is  worth  noting  that  this  same  act  amended  the  Placer  Act  of 
1870  by  reducing  the  amount  of  ground  that  an  individual  could  locate  from 
160  acres  to  20  acres  and  by  providing  that  an  association  of  eight  persons 
was  necessary  to  locate  160  acres  in  one  claim.  Revised  Stats.,  §  2330.  This 
change  gave  rise  to  the  same  use  of  fictitious  names  or  "dummies"  in  the 
case  of  placers,  that  Senator  Stewart  points  out  had  occurred  in  the  case 
of  lodes,  in  order  that  an  individual  might  acquire  indirectly  what  the  law 
prohibited  him  from  acquiring  directly.  It  is  strange  that  this  defect  in  the 
lode  law  should  have  been  remedied  by  the  same  statute  that  injected  it 
into  the  placer  law.  It  was  due  to  the  fact  that  Mr.  Cole  of  California, 
who  evidently  did  not  believe  in  large  claims  and  who  had  objected  to  the 
increase  of  length  of  lode  claims  from  200  feet  to  1500  feet,  insisted  on 
reducing  the  placer  area  an  individual  might  locate  from  160  to  20  acres. 
See  Congressional  Globe. 


EXTRALATERAL  RIGHTS  23 

two  hundred  feet  was  the  limit  to  which  they  restricted  each 
other,  and  to  allow  persons  now  to  obtain  title,  each  individual 
to  fifteen  hundred  feet  upon  the  1r»de,  is  certainly  a  very  great 
leap  forward.  It  is  in  my  judgment  too  much  of  an  exten- 
sion/'12 

Mr.  Casserly: — "Does  the  Senator  (Stewart)  consider 
that  there  is  no  danger  of  abuse  in  allowing  so  great  a 
quantity?" 

Mr.  Stewart— "None  in  the  world."13 

Another  clause  of  Section  2  provided  that  "no  claim  shall 
extend  more  than  three  hundred  feet  on  each  side  of  the  middle 
of  the  vein  at  the  surface,"  and  no  mining  regulation  was  permitted 
to  reduce  the  width  to  less  than  twenty-five  feet  on  each  side  of  the 
vein.  This  provision  was  an  attempt  to  bring  uniformity  out  of  the 
chaotic  condition  previously  existing  under  the  Act  of  1866,  which 
had  only  prescribed  a  uniform  linear  measurement  along  the  vein 
and  had  left  the  determination  of  the  surface  area  accompanying 
the  vein  to  be  determined  by  local  laws.  The  Act  of  1866  had 
granted  a  certain  length  of  lode,  but  the  shape  and  size  of  the 
surface  area  of  the  claim  were  incidental,  while  the  Act  of  1872 
granted  a  surface  area  of  prescribed  dimensions  containing  the 
lode.14  The  intention  of  the  miners  under  their  earlier  regulations 
prior  to  1866,  judging  from  the  phraseology  of  the  rules  and  their 
lack  of  regard  for  lateral  surface  measurements,  was  undoubtedly 
to  secure  to  the  locator  a  certain  length  of  lode  irrespective  of  the 
surface  containing  it.15  The  courts  later  held,  however,  that  a 
patent  granted  under  the  Act  of  1866  conveyed  rights  only  to  the 
length  of  lode  actually  included  in  the  surface  boundaries  of  the 
claim  as  patented,  and  the  fact  that  greater  number  of  linear  feet 
along  the  lode  was  claimed  under  the  rules  and  regulations  of 
miners  did  not  give  the  claimant  any  right  to  any  portion  of  the 
length  of  the  lode  outside  of  his  surface  lines.18  The  Act  of  1872 
cleared  up  this  objectionable  situation  by  emphasizing  the  surface 
and  prescribing  a  definite  and  conventional  surface  area  which  was 
theoretically,  at  least,  to  include  the  middle  of  the  vein  at  the  sur- 

12  Congressional  Globe,  April  16,  1872,  p.  2458. 

13  Id.  p.  2462. 

"Lindley  on  Mines,  §  71;  Gleeson  v.  Martin  White  M.  Co.  (1878),  13 
Nev.  442. 

15  "  ....  the  claim  was  of  so  much  of  the  lode  in  whatever  direction  it 
might  be  found  to  run,  with  a  strip  of  the  adjacent  surface,  taken  for  con- 
venience   in    working   the    lode    and    as    a    mere    incident    or    appurtenance 
thereto."    Beatty,  Report  of  Public  Land  Commission  (1880),  p.  397. 

16  This    situation    and    its    development    is    comprehensively    treated    in 
Lindley  on  Mines,  §§  58-60. 


24  CALIFORNIA  LAW  REVIEW 

face.     As  was  stated  by  Dr.  Raymond  in  his  comment  on  the  Act 
of  1872: 

"The  section  giving  absolute  title  to  a  certain  surface  and 
and  all  veins  'topping'  within  vertical  lines  drawn  from  the 
boundaries  of  that  surface-claim,  is  necessary  to  prevent 
special  litigation."17 

This  surface  provision  of  the  Act  of  1872  was  but  the  adoption 
of  a  stereotyped  form  of  surface  measurement  for  lode  claims 
that  had  been  in  existence  for  centuries  in  the  Germanic  and  Derby- 
shire lode  mining  laws.  Under  these  latter  laws  a  specified  surface 
width  on  each  side  of  the  vein  at  the  surface  was  the  prescribed 
mode  of  laying  out  lode  claims.18  Whether  these  foreign  laws 
served  as  a  model  in  this  respect  is  doubtful.  There  is  nothing  in 
the  Congressional  debates  on  the  bill  which  gives  us  information 
on  this  point  and  the  hearings  of  the  Committee  on  Mines  and 
Mining  where  the  source  of  the  provision  might  have  been  noted  are 
not  available.  It  has  already  been  mentioned  that  many  of  the 
mining  district  regulations  prescribed  the  maximum  width  of  lode 
claims  which  should  be  measured  "on  each  side  of  the  center  of 
the  lead,"  and  that  in  some  of  them  as  well  as  in  the  territorial 
legislation  of  Arizona  a  maximum  total  width  of  six  hundred  feet 
or  two  hundred  yards  for  each  claim  had  been  prescribed.19  It 
is  probable  that  this  provision  of  the  Act  of  1872  was  patterned 
after  these  local  laws. 

A  very  interesting  feature  of  Section  2  of  the  Act  of  1872  was 
the  concluding  provision  of  that  section  providing  that  "The  end 
lines  of  each  claim  shall  be  parallel  to  each  other."  The  Act  of 
1866  was  silent  on  the  subject  of  end  lines  of  lode  locations  and  as 
a  consequnce  end  lines  of  locations  made  under  the  Act  were 
seldom  parallel  and  often  broken  and  of  varying  length.  As  Justice 
Field  stated  in  the  Eureka  case,20  end  lines  or  rather  end  line 
planes  at  right  angles  to  the  general  course  of  the  vein  were  implied 
under  the  Act  of  i866.21  A  careful  search  of  local  rules  and  state 


17  Raymond,  Mineral   Resources    (1873),  p.  453. 

18  4  California  Law  Review,  pp.  365-6,  375. 

19  Id.  pp.  448-450. 

20  (1877),  4  Sawy.  302;  Fed.  Cas.  4548. 

21  The  Germanic  and  Derbyshire  laws  were  equally  silent  on  this  sub- 
ject of  the  manner  of  making  end  line  measurements  and  yet  each  of  these 
laws  was  interpreted  to  impliedly  confer   extralateral    rights  between   end 
line  planes  at  right  angles  to  the  general  course  of  the  vein.     Even  under 
the  Spanish  mining  ordinances  of  1783,  the  surface  claim  was  a  rectangle 
with  end  lines,  theoretically,  at  least,  at  right  angles  to  the  course  of  the 
vein.     See  4  California  Law  Review,  pp.  366-7,  375-6,  383. 


EXTRALATERAL  RIGHTS  25 

and  territorial  legislation  fails  to  disclose  any  which  provided  that 
the  end  lines  of  locations  should  be  either  at  right  angles  to  the 
general  course  of  the  vein  or  that  they  should  be  parallel,  except 
the  territorial  laws  of  Arizona  which  called  for  lode  locations  with 
a  surface  two  hundred  yards  square  and  the  right  to  follow  the 
vein  on  its  dip.  Attention  has  been  called  to  the  fact  that  the  bill 
introduced  in  Congress  in  1871  and  the  similar  bill  as  originally 
introduced  in  the  next  session,  which  eventually,  as  amended, 
became  the  Act  of  1872,  provided  that  the  end  lines  should  be 
parallel  "and  at  right  angles  with  the  general  course  of  the  vein," 
thus  adopting  what  had  theretofore  been  commonly  accepted  as  the 
legal  longitudinal  limitation  of  the  segment  of  vein  located.  Why 
the  right  angle  end  line  provision  was  eliminated  from  the  bill 
as  finally  adopted  and  only  the  requirement  of  parallelism  retained 
does  not  appear  in  the  debates  and  was  probably  determined  upon 
at  the  unreported  hearings  in  Committee.  Evidently  the  idea  was 
to  permit  the  locator  to  lay  out  his  parallel  end  lines  in  any 
direction  and  thus  enable  him  to  follow  down  on  a  valuable  ore 
shoot  in  the  vein  which  might  trend  or  rake  away  from  the  true 
dip  or  perpendicular.  If  this  was  the  intention,  it  was  "putting  the 
cart  before  the  horse,"  for  it  is  rarely  that  the  locator  at  the 
time  of  location  has  any  idea  where  ore  shoots  exist  in  the  piece  of 
vein  he  locates  and  much  more  rarely  that  he  knows  their  trend. 
End  lines  might  after  location  be  readjusted  as  to  direction  and  in 
this  manner  the  locator  might  be  enabled  to  include  within  his 
extralateral  sweep  a  valuable  ore  shoot  subsequently  discovered  and 
to  follow  it  down.  In  practice,  however,  by  the  time  the  facts  are 
discovered,  contiguous  locations  on  the  apex  of  the  vein  will 
usually  prevent  such  readjustment.  It  would  seem  to  have  been 
preferable  to  have  retained  the  right  angle  end  line  requirement, 
for  under  such  a  rule  end  lines  of  locations  placed  along  the  apex  of 
a  vein  would  be  more  nearly  uniform  in  direction,  and  conflicting 
extralateral  rights  in  depth  much  less  frequent.  Of  course,  a 
decided  change  in  the  direction  or  course  of  the  vein  at  the  surface 
would  have  produced  underground  conflicts  if  the  requirement  of 
end  lines  at  right  angles  to  the  local  course  of  the  vein  were  strictly 
followed.  But  the  language  of  the  earlier  mining  bill  called  for 
right  angle  measurement  to  be  made  from  "the  general  course  of 
the  vein."  If  this  wording  had  been  retained  in  the  Act  as  finally 
passed  it  would  certainly  have  materially  lessened  the  litigation 
directly  traceable  to  the  extralateral  right  provision.  By  laying 


26  CALIFORNIA  LAW  REVIEW 

out  a  base  line  on  the  surface  representing  the  general  course  of 
the  vein,  as  was  done  on  the  Comstock  lode  and  also  for  a  time 
in  Australia,  then  projecting  the  end  lines  of  the  various 
claims  taken  up  along  the  vein  at  right  angles  to  this  base  line, 
and  thus  measuring  the  extent  of  each  locator's  right  to  follow  the 
vein  extralaterally  down  on  its  dip,  there  would  have  been  afforded 
the  most  scientific  and  harmonious  measure  of  this  right  possible 
to  devise.22 

Section  3  of  the  Act  of  1872  is  as  follows  :23 

"That  the  locators  of  all  mining  locations  heretofore  made, 
or  which  shall  hereafter  be  made,  on  any  mineral  vein,  lode, 
or  ledge,  situated  on  the  public  domain,  their  heirs  and  as- 
signs, where  no  adverse  claim  exists  at  the  passage  of  this 
act,  so  long  as  they  comply  with  the  laws  of  the  United  States 
and  the  state,  territorial,  and  local  regulations,  not  in  conflict 
with  said  laws  of  the  United  States,  governing  their  posses- 
sory title,  shall  have  the  exclusive  right  of  possession  and 
enjoyment  of  all  the  surface  included  within  the  lines  of 
their  locations  and  of  all  veins,  lodes,  and  ledges,  throughout 
their  entire  depth,  the  top  or  apex  of  which  lies  inside  of 
such  surface  lines  extended  downward  vertically,  although 
such  veins,  lodes,  or  ledges  may  so  far  depart  from  a  perpen- 
dicular in  their  course  downward  as  to  extend  outside  the 
vertical  side-lines  of  said  surface  locations;  provided,  that 
their  right  of  possession  to  such  outside  parts  of  said  veins 
or  ledges  shall  be  confined  to  such  portions  thereof  as 
lie  between  vertical  planes  drawn  downward  as  aforesaid, 
through  the  end-lines  of  their  locations,  so  continued  in  their 
own  direction  that  such  planes  will  intersect  such  exterior 
parts  of  said  veins  or  ledges.  And  provided  further,  that 
nothing  in  this  section  shall  authorize  the  locator  or  pos- 
sessor of  a  vein  or  lode  which  extends,  in  its  downward 
course,  beyond  the  vertical  lines  of  his  claim,  to  enter  upon 
the  surface  of  a  claim  owned  or  possessed  by  another." 

This  section  is  identical  with  Section  3  of  the  bill  which  passed 
the  Senate  in  1871.  It  merely  confirms  in  more  elaborate  and  ex- 
plicit language  the  right  which  had  been  created  by  the  early 
miners,  subsequently  written  into  their  local  regulations  and  state 
and  territorial  legislation,  and  later  recognized  in  the  Act  of  1866. 
The  only  point  of  material  difference  was  the  extension  of  this 
right  under  the  Act  of  1872  to  "all  veins"  which  were  found  to 


22  See  "The  Law  of  Apex"  (1914)  by  Kenney,  a  volume  devoted  to  an 
expostion  of  this  interesting  principle.  Also  see  4  California  Law  Review, 
p.  385. 

2*  See  U.  S.  Revised  Stats.,  §  2322. 


EXTRALATERAL  RIGHTS  27 

apex  within  the  surface  of  each  location.  The  Act  of  1866  had 
confined  the  extralateral  right  to  the  one  main  vein.  This  had 
given  rise  to  so  much  uncertainty  and  litigation  that  it  was 
deemed  best  to  extend  the  right  to  all  veins  occurring  in  the 
surface  area  located,  thus  removing  the  temptation  to  trespass 
on  another's  claim  in  the  attempt  to  discover  or  locate  a  secondary 
vein  which  might  exist  therein.24 

The  use  of  the  words  "top"  or  "apex"  with  reference  to  the 
veins  found  in  the  surface  location,  appears  to  have  been  the 
first  use  of  these  terms  in  this  relation.25  The  miners'  regulations 
the  state  and  territorial  legislation  and  the  Act  of  1866,  all  pro- 
vided for  the  location  of  a  specific  "length  along  the  vein."  It 
was  taken  for  granted  that  this  meant  that  the  location  should 
include  the  outcrop  or  "top  or  apex"  of  the  vein  or  that  portion 
of  its  upper  or  terminal  edge  lying  nearest  the  surface.26  With 
the  appearance  of  these  terms  in  the  Act  of  1872  came  into  exis- 
tence the  expression  the  "Law  of  the  Apex,"  which  has  since  been 
extensively  used  to  describe  the  extralateral  right  feature  of  the  Act. 
The  use  of  these  terms,  however,  did  not  change  the  character 
of  the  extralateral  right  one  iota;  they  were  merely  descriptive 
of  a  portion  of  the  vein  which  it  had  always  been  assumed  must 
form  the  basis  of  the  location. 

This  discussion  is  concerned  only  with  those  portions  of  the 
Act  which  have  a  direct  bearing  on  the  extralateral  right.  Sec- 
tion 4  granted  a  unique  tunnel  right  which  included  the  right 
to  such  veins  or  lodes  as  might  be  discovered  in  the  tunnel.27 
Aside  from  a  provision  contained  in  Section  n  applicable  to 
veins  found  to  exist  in  placer  claims  and  Section  14  which  pro- 
vided that  priority  of  title  should  govern  where  veins  intersected 
or  crossed  each  other  and  also  where  they  united  in  depth,  the 
Act  was  devoted  to  other  subjects  than  the  extralateral  right. 


24  "The  law  of   1866  was   fatally  deficient  ....  in   failing  to   prohibit 
prospecting  within  the  surface-lines  of  an  already  located  claim"   but  the 
amendment  of  1872  may  be  considered  ample  to  remedy  this  defect.     Ray- 
mond, Mineral  Resources   (1874),  p.  513.     See  also  Raymond,  Mineral  Re- 
sources (1870),  pp.  433-436. 

25  Stevens  v.  Williams    (1879),  Fed.   Cas.  No.  13,414.     For  a  complete 
discussion  of  these  terms,  see  Lindley  on  Mines,  §§  305-313. 

26  The  Derbyshire  and  Germanic  laws  only  called  for  a  certain  length 
of  vein  and  there  was  no  attempt  to  define  the  portion  of  the  vein  to  be 
located.     It  was  assumed  that  this  would  be  the  top  or  upper  edge  of  the 
vein. 

27  This  provision  was  included  for  the  protection  of  certain  Colorado 
miners.    Senator  Stewart  in  Congressional  Globe  (1872),  pp.  978-9. 


28  CALIFORNIA  LAW  REVIEW 

Looking  at  the  Act  of  1872  broadly  we  see  that  the  funda- 
mental principles  created  by  the  miners  under  their  own  laws 
and  customs,  later  embodied  in  state  and  territorial  legislation  and 
eventually  crystallized  in  the  Act  of  1866,  were  not  materially 
altered  by  the  Act  of  i872.28  The  basic  right  of  free  mining 
was  retained  unchanged  and  the  extralateral  right  was  again 
confirmed,  though  in  more  elaborate  language.  With  the  excep- 
tion of  the  parallel  end  line  provision  which  supplanted  the  implied 
right  angle  end  line  measurement  under  the  previous  law  and  the 
grant  of  all  veins  found  apexing  in  the  surface  location,  the  extra- 
lateral  right  remained  the  same  in  substance.  As  already  noted, 
the  surface  area  obtainable  under  the  new  act  was  described  with 
great  detail.  The  adoption  of  the  basic  features  of  the  miners* 
laws,  and  the  elaborate  provision  contained  in  the  Act  govern- 
ing acquisition  of  the  surface  claim  rendered  the  local  rules  and 
regulations  of  the  mining  districts  practically  obsolete.  Though 
the  Act  recognized  such  local  laws  and  customs  as  did  not  conflict 
with  the  federal  Act  their  value  was  largely  a  thing  of  the  past. 
They  had  served  their  important  purpose  and  they  gradually  died 
a  natural  death. 

The  Act  of  1872  was  generally  considered  a  great  improve- 
ment over  the  imperfect  and  incomplete  Act  of  i866.29 

It  was  later  codified  and  became  a  part  of  the  federal  Re- 
vised Statutes,30  and  is,  with  a  few  minor  additions  and  modifi- 
cations, the  mining  law  in  force  today  governing  the  acquisition 
of  mineral  lands  on  the  public  domain.  The  extralateral  right 
feature  of  the  Act  has  remained  unchanged.  It  is  not  the  purpose 
of  this  article  to  present  the  detailed  interpretation  of  this  extra- 


28  "It  (the  Act  of  1872)  recognized  the  essential  principles  found  in  the 
miners'  regulations."     Charles  J.  Hughes,  Jr.,  Address  on  "The  Evolution 
of   Mining  Law."     XXIV,   Reports  of  American   Bar  Association    (1901), 
p.  344. 

29  Judge   Beatty   said   in   the   Gleeson   v.    Martin    White    M.    Co.    case, 
supra,  n.  14,  referring  to  the  Act  of  1872:     "Nobody  can  pretend  that  it  is 
perfect;  but  to  our  minds  it  is  a  great  improvement  on  the  system  which 
it  displaced." 

Dr.  Raymond  in  commenting  on  the  Act,  wrote:  "It  embodies  much 
that  I  have  advocated  in  former  reports,  and  I  think  it  will  be  approved  by 
the  large  body  of  practical  miners  in  the  United  States,  who  whatever 
criticisms  they  may  make  upon  particular  provisions,  must  agree  in  com- 
mending the  tone  which  mining  legislation  has  assumed,  and  the  character 
of  the  protection  offered  to  their  property."  After  making  some  minor 
criticisms  of  features  of  the  law,  he  added :  "Nevertheless  it  is  certain  that 
the  present  law  is  a  great  advance  on  anything  we  have  had."  Raymond, 
Mineral  Resources  (1873),  p.  454. 

3o§8  2319-2337. 


EXTRALATERAL  RIGHTS  29 

lateral  grant,  gradually  built  up  by  court  decisions.  This  may  be 
found  in  the  leading  works  dealing  with  the  subject  of  mining 
law.31 

Before  taking  up  the  concluding  phase  of  this  discussion,  which 
will  be  a  consideration  of  the  proposed  abolition  of  the  extra- 
lateral  right,  it  may  be  worth  while  to  sum  up  briefly  the  evidence 
bearing  on  the  origin  of  the  extralateral  right  in  the  United 
States. 

If  the  miners'  rules  and  regulations  were  patterned  after  mining 
laws  of  other  countries  we  have  no  direct  evidence  bearing  on 
the  question.  There  were  men,  however,  who  would  have  been 
likely  to  have  possessed  some  information  on  this  subject  if  it 
had  existed.  Senator  Wm.  M.  Stewart  who,  as  we  have  seen, 
not  only  took  the  leading  part  in  framing  the  Act  of  1866,  but  also 
did  more  than  anyone  else  in  drafting  the  Act  of  1872,  had  spent 
years  in  the  mining  districts  and  associated  with  other  Senators 
and  Congressmen  from  the  West  who  aided  in  moulding  this  legis- 
lation and,  as  the  debates  reported  in  the  Congressional  Globe  of 
that  period  show,  were,  many  of  them,  originally  miners  them- 
selves. Senator  Stewart  also  met  with  delegations  of  miners 
from  the  Western  States  and  Territories  and  discussed  extensively 
all  of  the  features  of  the  mining  law. 

Stephen  J.  Field  had  grown  up  with  the  mining  dis- 
tricts. He  represented  the  miners  in  the  California  State  legis- 
lature in  1851,  and  secured  the  enactment  of  the  section  of  the 
Practice  Act  making  the  customs,  usages  and  regulations  of  the 
"bar  or  diggings"  govern  in  actions  respecting  mining  claims. 
He  had  previously  been  an  alcalde  and  later  went  from  the 
supreme  bench  of  the  State  to  the  Supreme  Court  of  the  United 
States.  As  Judge  Lindley  has  said  in  his  eloquent  tribute  to 
Justice  Field,  he  had  "the  practical  knowledge  acquired  by  per- 
sonal contact  with  the  mining  communities"  and  "was  a  part  of 
the  history  of  which  he  wrote/'32 

Justice  Wm.  H.  Beatty  was  for  years  a  district  judge  in  the 
mining  regions  of  Nevada  and  became  the  Chief  Justice  of  the 
Supreme  Court  of  that  state  and  later,  up  to  the  date  of  his 
recent  death,  was  Chief  Justice  of  the  Supreme  Court  of  Cali- 


31  Lindley  on  Mines,  §§  581-615;  Costigan,  Mining  Law,  pp.  417-452; 
Barringer  &  Adams  Law  of  Mines,  pp.  437-470;  Morrison,  Mining  Rights, 
(14th  ed.),  pp.  192-219;  1  California  Law  Review,  pp.  336-358. 

a2  Lindley  on  Mines,  §  44. 


30  CALIFORNIA  LAW  REVIEW 

forma.  He  was  greatly  interested  in  the  miners'  rules  and  regu- 
lations and  thoroughly  conversant  with  their  history. 

These  three  men  were  pre-eminently  qualified  to  discuss  the 
evolution  of  the  mining  law  of  the  West ;  each  of  them  was  deeply 
interested  in  its  origin  and  development  and  they  were  con- 
stantly in  direct  contact  with  the  pioneer  miners  and  discussed 
problems  arising  out  of  the  mining  industry.  One  or  the  other 
of  these  men  would  surely  have  learned  of  the  source  of  these 
local  laws  if  this  source  were  directly  traceable  to  mining  laws 
of  other  countries.  On  the  contrary,  we  nowhere  find  in  their 
remarkably  lucid  and  complete  presentations  of  the  history  and 
development  of  these  laws  any  reference  whatsoever  to  any  foreign 
mining  law  as  furnishing  the  basis  for  these  early  customs  and 
regulations. 

Senator  Stewart  in  his  famous  speech  in  the  United  States 
Senate  advocating  the  passage  of  the  Act  of  1866,  described  the 
exciting  emigration  to  California  following  upon  the  discovery 
of  gold,  saying: 

"Upon  the  discovery  of  gold  in  California,  in  1848,  a  large 
emigration  of  young  men  immediately  rushed  to  the  modern 
Ophir.     These  people,  numbering  in  a  few  months  hundreds 
of    thousands,    on    arriving   at   their    future   home    found   no 
laws  governing  the  possession  and  occupation  of   mines  but 
the  common  law  of  right,  which  Americans  alone  are  edu- 
cated to  administer.     They  were  forced  by  the  very  neces- 
sity of  the  case  to  make  laws   for  themselves.     The  reason 
and  justice  of  the  laws  they  formed  challenge  the  admiration 
of  all  who  investigate  them.     Each  mining  district,  in  an  area 
extending   over   not    less    than   fifty    thousand    square    miles, 
formed   its   own   rules   and  adopted   its   own   customs.      The 
similarity  of  these  rules  and  customs  throughout  the   entire 
mining  region  was  so  great  as  to  attain  all  the  beneficial  re- 
sults of  well-digested,  general  laws.     These  regulations  were 
thoroughly    democratic   in    their   character,    guarding   against 
every  form  of  monopoly,  and  requiring  continued  work  and 
occupation  in  good  faith  to  constitute  a  valid  possession."33 
Nowhere  in  his  entire  eloquent  appeal  for  recognition  of  the 
principles   established   by   the   miners   themselves,    with   its   many 
detailed  references  to  the  democratic  origin  of  these  rules,  does 
Senator  Stewart  mention  their  having  been  patterned  after  mining 
laws  of  other  countries. 


3370  U.   S.  777,  Appendix. 


EXTRALATERAL  RIGHTS  31 

In    his    classic    description    of    the    gold    rush    to    California, 

Justice  Field,  speaking  of  the  pioneers,  says  : 

"Wherever  they  went,  they  carried  with  them  that  love 
of  order  and  system  and  of  fair  dealing  which  are  the  promi- 
nent characteristics  of  our  people.  In  every  district  which 
they  occupied  they  framed  certain  rules  for  their  government, 
by  which  the  extent  of  ground  they  could  severally  hold 
for  mining  was  designated/*  etc  .....  They  were  so 
framed  as  to  secure  to  all  comers,,  within  practicable  limits 
absolute  equality  of  right  and  privilege  in  working  mines. 
Nothing  but  such  equality  would  have  been  tolerated  by  the 
miners,  who  were  emphatically  the  lawmakers,  as  respects 
mining,  upon  the  public  lands  in  the  State."34 
Justice  Field  above  all  others  should  have  known  whether  these 

laws   were   of   foreign  origin  and  yet  he  makes   no  reference  to 

any  such  source. 

Justice  Beatty  while  Chief  Justice  of  the  Supreme  Court  of 

Nevada  was  requested  by  the  Public  Land  Commission  to  give 

his   views   on   the   mining   laws.35     From  his   comprehensive   and 

illuminating  reply  the  following  is  quoted  :86 

"When  placer  mining  began  in  California  there  was  no 
law  regulating  the  size  of  claims  or  the  manner  of  holding 
and  working  them,  and  local  regulations  by  the  miners  them- 
selves became  a  necessity.  They  were  adopted,  not  because 
the  subject  was  too  complicated  or  difficult  for  general  regu- 
lation, but  because  they  were  needed  at  once  as  the  sole 
refuge  from  anarchy.  The  first  and  most  important  matter 
to  be  regulated  was  the  size  of  claims,  and  the  earliest  min- 
ers' rules  contained  little  else  than  a  limitation  of  the  maxi- 
mum amount  of  mining  ground  that  one  miner  might  hold." 
He  outlined  the  addition  of  other  requirements  to  the  placer 
rules  and  then  added  : 

"After  these  regulations  had  been  some  time  in  force  came 
the  discovery  of  veins  or  lodes  of  gold-bearing  rock  in  place, 
and  to  them  the  law  of  the  placer  was  adapted  with  the  least 
possible  change." 

It  is  quite  clear  that  Justice  Beatty  did  not  have  in  mind  any 
thought  but  that  the  lode  mining  regulations  were  founded  on 
the  placer  rules  that  had  just  been  established  and  that  it  was 
a  natural  step  from  the  one  to  the  other.37  If  he  had  entertained 


v.  Kirk   (1878),  98  U.  S.  453,  457-8. 

35  Report  of  the  Public  Lands  Commission   (1880),  pp.  395-402. 

36  Id.  p.   396. 

37  J.  Ross  Browne  entertained  the  same  view,  for  in  his  report  of  1867 
on  Mineral   Resources,  p.  231,  he  states  that  the  early  quartz  regulations 
were    framed   "under   the   influence    of    persons    familiar   only   with    small 
claims  customary  in  the  placers." 


32  CALIFORNIA  LAW  REVIEW 

any  idea  that  the  local  lode  laws  were  patterned  after  any  sys- 
tem of  mining  law  imported  by  miners  from  foreign  countries, 
he  would  certainly  have  mentioned  a  fact  of  such  unusual  in- 
terest. 

The  mere  failure  of  these  three  distinguished  men,  who  were 
admittedly  pre-eminent  in  their  knowledge  of  the  subject  with 
which  they  were  so  intimately  associated,  to  mention  the  fact 
that  our  lode  mining  law  had  a  foreign  origin,  does  not,  of 
course,  prove  conclusively  that  it  did  not  have  some  such  basis. 
However,  all  fair  minded  persons  must  admit  that  such  foreign 
influence  if  it  actually  existed  must  have  been  kept  a  profound 
secret,  otherwise  one  or  the  other  of  these  men  would  certainly 
have  learned  of  it  and  called  attention  to  it. 

The  main  support  for  the  idea  that  our  lode  law  and  its  extra- 
lateral  right  was  derived  from  foreign  sources  is  to  be  found  in 
Yale  on  "Legal  Titles  to  Mining  Claims,  etc."  Speaking  of  the 
origin  of  these  rules  and  regulations  he  says  :38 

"The  real  mining  code,  as  far  as  it  can  be  traced  by  legal 
ear  marks,  has  sprung  from  the  customs  and  usages  of  the 
miners  themselves,  with  rare  applications  of  common  law 
principles  by  the  Courts  to  vary  them.  Most  of  the  rules 
and  customs  constituting  the  code,  are  easily  recognized  by 
those  familiar  with  the  Mexican  ordinances,  the  Continental 
Mining  Codes,  especially  the  Spanish,  and  with  the  regula- 
tions of  the  Stannary  Convocations  among  the  Tin  Bound- 
ers of  Devon  and  Cornwall,  in  England,  and  the  High  Peak 
Regulations  for  the  lead  mines  in  the  county  of  Derby. 
These  regulations  are  founded  in  nature,  and  are  based  upon 
equitable  principles,  comprehensive  and  simple,  have  a  com- 
mon origin,  are  matured  by  practice,  and  provide  for  both 
surface  and  subterranean  work,  in  alluvian,  or  rock  in  situ. 
In  the  earlier  days  of  placer  digging,  in  California,  the  large 
influx  of  miners  from  the  western  coast  of  Mexico,  and  from 
South  America,  necessarily  dictated  the  system  of  work  to 
Americans,  who  were  almost  entirely  inexperienced  in  this 
branch  of  industry,  with  few  exceptions  from  the  gold  mines 
of  North  Carolina  and  Georgia,  and  from  the  lead  mines  of 
Illinois  and  Wisconsin.  The  old  Californians  had  little  or 
no  experience  in  mining.  The  Cornish  miners  soon  spread 
themselves  through  the  State,  and  added  largely  by  their 
experience,  practical  sense,  and  industrious  habits,  in  bring- 
ing the  code  into  something  like  system.  The  Spanish- 
American  system  which  had  grown  up  under  the  practical 


«•  (1867),  pp.  58-9. 


EXTRALATERAL  RIGHTS  33 

working  of  the  mining  ordinances  for  New  Spain,  was  the 
foundation  of  the  rules  and  customs  adopted. 

"Senator  Stewart  has  ascribed  undeserved  merit  to  the 
early  miners  in  pronouncing  them  the  authors  of  the  local 

rules    and    customs But    they    were    not    the 

spontaneous  creation  of  the  miners  of  1849-50.  Historical 
accuracy  ascribes  a  different  origin  to  them.  They  reflect 
the  matured  wisdom  of  the  practical  miner  of  past  ages, 
and  have  their  foundation,  as  has  been  stated,  in  certain 
natural  laws,  easily  applied  to  different  situations,  and  were 
propagated  in  the  California  mines  by  those  who  had  a 
practical  and  traditional  knowledge  of  them  in  their  varied 
form,  in  the  countries  of  their  origin,  and  were  adopted,  and 
no  doubt  gradually  improved  and  judiciously  modified  by  the 
Americans.  This  self-evident  fact  can  be  admitted  without 
detracting  from  our  national  pride." 

Yale  also  gives  General  Halleck's  opinion  of  their  origin.39 

"General  Halleck  ascribes  to  them  a  more  limited  origin, 
otherwise  agreeing  in  the  statement  made.  In  his  introduc- 
tion to  the  translation  of  De  Fooz,  he  says:  'But  the  min- 
ers of  California  have  generally  adopted,  as  being  best  suited 
to  their  peculiar  wants,  the  main  principles  of  the  mining 
laws  of  Spain  and  Mexico,  by  which  the  right  of  property 
in  mines  is  made  to  depend  upon  discovery  and  development; 
that  is,  discovery  is  made  the  source  of  title,  and  develop- 
ment, or  working,  the  condition  of  the  continuance  of  that 
title.  These  two  principles  constitute  the  basis  of  all  of  our 
local  laws  and  regulations  respecting  mining  rights/  (De 
Fooz,  §§S)  7.)" 
He  concludes  with  a  statement  which  more  nearly  embodies 

what  is  probably  the  real  truth  of  the  matter  as  far  as  the  origin 

of  these  laws  is  concerned. 

"An  examination  of  the  mining  codes  of  different  nations, 
tracing  them  back  to  remote  antiquity,  and  through  modern 
legislation,  tested  by  the  philosophical  principles  of  compara- 
tive law,  would,  probably,  result  in  the  conclusion  that  they 
have  a  common  origin,  maintaining  certain  general  equitable 
principles  upon  which  all  are  agreed,  and  differing  only  in 
the  details  which  a  diversified  ownership,  the  peculiarities  of 
race,  and  condition  of  locality  necessitate." 

It  seems  quite  certain  that  both  Mr.  Yale  and  General  Hal- 
leck are  mistaken  in  attributing  the  origin  of  these  rules  and 
regulations  to  Spanish  influence.  As  already  pointed  out,  the 
Spanish-Mexican  mining  laws  were  inoperative  and  unknown  in 


39  Id.  p.  71. 


34  CALIFORNIA  LAW  REVIEW 

this  new  region  at  the  time  the  early  miners'  laws  were  framed.40 
The  requirements  of  discovery  and  development  were  universal 
requirements  and  were  not  characteristic  of  Spanish  law  alone. 

Direct  Germanic  influence  is  also  doubtful  and  the  complex 
Germanic  form  of  extralateral  right  is  so  different  from  the 
simple  form  of  this  right  which  developed  in  this  country  that 
the  Germanic  extralateral  right  could  only  remotely  have  sug- 
gested the  idea  here.41 

Many  writers  attribute  the  source  of  our  mining  laws  to 
Cornish  influence.  This  idea  does  not  seem  well  founded,  for 
no  extralateral  right  was  exercised  in  the  tin  mines  of  Corn- 
wall or  Devonshire  and  the  ancient  right  of  tin  bounding  or 
right  of  staking  out  a  mining  claim  on  waste  land  had  almost 
ceased  to  be  exercised.42  Most  of  the  lode  mining  in  Cornwall 
and  Devon  was  carried  on  under  leases  from  the  Duke  of  Corn- 
wall.43 The  fact  that  the  Duke  of  Cornwall  had  the  right  to 
these  mines  and  in  leasing  them,  naturally,  gave  the  lessee  the 
right  to  follow  the  veins  down  indefinitely  in  depth  and  thus 
severed  them  from  the  surface,  may  have  had  something  to  do 
with  the  idea  expressed  in  the  early  regulations  here,  that  the 
vein  was  the  principal  thing  and  the  surface  a  mere  incident. 

It  cannot  be  denied,  however,  that  the  Cornish  influence  was 
pronounced.  The  early  and  widespread  use  in  the  miners'  regu- 
lations of  the  term  "lead"  or  "lode"  and  the  appearance  in  these 
local  rules  of  such  terms  as  dips,  spurs,  angles,  slides,  fitters 
(flitters),  leaders,  dial  (survey),  offshoots  is  quite  positive  evi- 


40  4  California  Law  Review,  pp.  437-8;  Hon.  Charles  T.  Hughes,  Jr.,  in 
his   interesting   article   on    "The   evolution   of    Mining   Law"    (Vol.    XXIV, 
Report  of  American  Bar  Association,  p.  343)  in  summing  up  his  views,  has 
this  to  say  on  the  Spanish  influence:    "The  early  miners,  in  their  mountain 
gulches,  in  their  humble  cabins,  at  their  primitive  assemblages,  unfamiliar 
with    the   history   of   mining   laws   and    regulations   in   the    old   world,    and 
even  with  the  Spanish  regulations  which  had  prevailed  in  the  very  territory 
which   they   occupied,    seized   upon   the   aptest,   wisest    and   most   beneficial 
principles  which  could  have  been  adopted,  and  by  vigorous,  strenuous,  inde- 
pendent, but   respectful  assertion  of  their  rights,   secured  their   recognition 
at  the  hands  of  the  general  government,  to  the  incalculable  enrichment  and 
advantage  of  the  entire  nation." 

41  Aguillon  in  his  "Legislation  des  Mines,   fitrangere"    (1891),  Part  II, 
p.  292,  in  commenting  on  the  American  extralateral  right,  says:     "It  is,  one 
realizes,  the  system  of  defining  the  claim  by  the  ancient  law,  notably  the 
German  system  of  Langenfelder  or  Gestrektefelder." 

42  "Through  the  scarcity  of  wastrel   land   it    (in  bounding)    has,   how- 
ever, become  more  or  less  obsolete."     (Vol.  II,  Part  I,  p.  32)   Transactions 
of  the  Mining  Association  of  Cornwall. 

43Bainbridge  on   Mines  &  Minerals    (5th  ed.),  pp.   121,   133-134;    Mac 
Swinney,  The  Law  of  Mines  etc.  (3rd  ed.),  pp.  176-177. 


EXTRALATERAL  RIGHTS  35 

dence  that  Cornishmen  supplied  a  large  part  of  the  mining 
vocabulary. 

The  resemblance  of  the  extralateral  right  which  was  created 
by  the  miners  here  to  the  similar  simple  form  of  that  right 
existing  in  Derbyshire,  England,  has  led  many  to  claim  a  direct 
relationship.  This  is  doubtful,  and  unless  some  direct  proof  of 
Derbyshire  influence  can  be  adduced,  the  weight  of  evidence 
seems  rather  opposed  to  this  view.  If  the  Derbyshire  influence 
had  been  pronounced,  we  would  expect  the  Derbyshire  term 
"rake,"  meaning  vein,  to  have  supplanted  the  Cornish  "lode,"  and 
yet  the  word  "rake"  does  not  appear  in  any  of  the  regulations. 

If  we  examine  the  regulations  themselves,  the  simplicity  of 
the  language  employed,  and  the  variations  of  expression  used  in 
the  different  districts  to  describe  the  same  right,  lead  to  the  con- 
viction that  instead  of  being  knowingly  patterned  after  other 
mining  codes,  these  local  laws  were  merely  the  direct  outgrowth 
of  the  necessities  of  the  hour.  It  became  necessary  to  appor- 
tion the  placer  ground  among  the  increasing  number  of  miners 
flocking  into  the  mining  districts  and  small  square  or  rectangular 
areas  of  surface  were  naturally  adopted  as  the  size  of  claim  to 
which  each  miner  was  entitled.  But  when  veins  became  important 
it  was  equally  natural  for  the  miner  to  apportion  the  vein  in 
short  lengths  and  disregard  the  surface  as  something  unimport- 
ant, for  the  vein  was  the  thing  of  value.  To  follow  the  vein 
down  on  its  dip  to  the  extent  that  the  miner  owned  of  length 
was  also  a  natural  and  normal  sequence,  for  the  miner  was 
the  discoverer  of  the  top  of  the  vein  and  why  should  he  give 
up  to  another  the  vein  on  its  dip  when  that  other  had  nothing 
to  do  with  finding  it?  Probably  some  such  line  of  thought  in 
the  minds  of  these  pioneers  resulted  in  the  adoption  of  their 
early  rules  regulating  lode  claims,  including  the  extralateral  right. 
That  they  did  not  have  in  mind  any  definite  laws  as  a  pattern 
granting  the  extralateral  right  to  the  locator,  is  further  borne 
out  by  the  fact  that  the  extralateral  right  first  appeared  in  the 
Saunders'  Ledge  regulations  on  June  6,  1851,  in  Nevada 
County,  where  the  words  "dips  and  angles"  were  employed  to 
describe  the  right  and  one  hundred  feet  in  length  on  the  ledge 
constituted  a  claim  while,  on  June  7,  1851,  only  the  day  fol- 
lowing, the  miners  of  Drytown  Mining  District,  Amador  County, 
adopted  regulations  establishing  the  length  of  claims  to  be  two 
hundred  and  forty  feet  in  length  of  the  vein  "without  regard  to 


36  CALIFORNIA  LAW  REVIEW 

width"  which  was  only  another  way  of  expressing  the  same 
idea  that  there  was  no  limitation  on  the  right  to  follow  the 
vein  in  depth.  Other  regulations  granting  the  same  right  to 
follow  a  certain  length  of  vein  indefinitely  in  depth  were  ex- 
pressed in  language  which  varied  in  each  case.  This  diversity 
of  expression  to  convey  the  same  general  idea  of  a  right  to 
follow  down  on  the  vein  indefinitely  and  also  the  varying  length 
of  vein  awarded  to  the  locator  in  different  districts,  argue  strongly 
against  any  idea  of  a  definite  prototype  which  influenced  the 
drafting  of  these  regulations. 

The  resemblance  of  many  features  of  these  regulations  to 
the  provisions  of  other  systems  of  mining  law  is  merely  confir- 
mation of  the  fact  that  if  intelligent  persons  are  confronted  with 
a  state  of  affairs  creating  a  situation  which  demands  regulation 
by  a  set  of  rules,  they  will  frequently  arrive  at  results  similar 
in  their  broader  aspects.  Dictates  of  common  sense  will  usually 
direct  the  adoption  of  rules  based  on  equitable  considerations. 
It  seems  quite  certain  that  the  pioneer  miners  of  California  pro- 
ceeded along  similar  lines  and  met  the  situation  which  con- 
fronted them  by  adopting  laws  governing  their  mining  opera- 
tions, similar  in  many  respects  to  other  laws  which  had  been 
evolved  elsewhere  under  like  circumstances.  The  similarity  was 
a  coincidence  rather  than  the  result  of  a  deliberate  recognition 
of  pre-existing  laws.44 

Wm.  E.  Colby. 
Berkeley,  California. 


44Walmesley  in  "The  Mining  Laws  of  the  World"  (1894),  p.  163  says: 

"The  California  system  was  probably  not  due  to  Mexican  influence. 

The  principle  of  possessory  tenure,  dependent  upon  continued  work,  is 
probably  German  in  origin,  and  passed  from  Germany  to  other  countries. 
Together  with  all  the  other  peculiarities  of  the  California  system,  it  was 
adopted  under  the  pressure  of  the  peculiar  circumstances  of  the  case,  a 
great  rush  of  population  to  the  gold-fields,  more  people  than  room  for 
them,  no  courts,  no  surveyors,  and  an  overwhelming  necessity  for  simple 
right  of  property,  based  on  priority  and  possession,  and  determinate  by 
mere  tape-line  measurement,  without  surveying.  These  causes  adequately 
explain  the  whole  result."  The  basis  of  most  of  Walmesley's  statements  is 
the  testimony  given  by  Dr.  Rossiter  W.  Raymond  before  the  Royal  Com- 
mission on  Mining  Royalties.  (Third  Report:  England). 

The  presence  here  of  foreigners  in  large  numbers  from  all  parts  of  the 
world  lends  weight  to  the  idea  that  in  a  broad  way,  at  least,  certain  funda- 
mental principles  may  have  been  suggested  by  them  to  the  original  framers 
of  these  local  codes,  who  may  have  thus  been  confirmed  in  their  codification 
of  similar  ideas. 


The  Extralateral  Right:  Shall  It 
Be  Abolished? 

IV.     CONCLUSION. 
GROWTH  OF  OPPOSITION. 

WHEN  the  first  concerted  attempt  to  abolish  the  extralateral 
right  was  made  is  uncertain.  The  Act  of  1866  was 
adopted  without  serious  opposition  to  this  feature.1  It 
is  true  that  Julien  in  the  House  of  Representatives  attacked  this 
idea  of  granting  a  right  "allowing  one  man  to  run  half  a  mile 
under  the  land  of  another"  but  he  did  this  because  of  his  bitter 
opposition  to  the  bill  as  a  whole  and  not  because  he  had  any 
special  information  on  the  subject.  Instead  of  representing  mining 
sentiment  in  the  West,  he  was  the  chief  exponent  of  the  plan  which 
had  taken  such  a  strong  hold  in  the  East  of  selling  or  leasing 
the  mines  to  the  highest  bidder  and  devoting  the  proceeds  toward 
liquidating  the  national  debt.  His  opposition  to  the  extralateral 
feature  was  due  to  his  general  attitude  of  hostility  to  the  desire 

1  William  M.  Stewart  who  has  been  so  frequently  and  unjustly  charged 
with  forcing  the  federal  mining  Acts  of  1866  and  1872  upon  an  unsus- 
pecting public  took  a  leading  part  in  the  Comstock  litigation  during  the 
early  60's.  "  ....  it  was  his  plan  to  induce  the  different  companies  on 
the  lode  to  put  an  end  to  otherwise  certain  litigation  by  defining  their  sur- 
face lines  or  the  boundaries  of  their  claims  accurately  and  finally 

When  the  boundary  lines  were  determined  it  was  to  be  stipulated  that 
planes  should  be  drawn  perpendicular  to  these  lines,  extending  indefinitely 
downward  and  that  the  mining  operations  of  all  companies  should  bo 
confined  within  the  limits  of  the  planes  bounding-  their  respective 

claims Now  this  was  substantially  a  relinquishment  of  the  cherished 

but  litigious  principle  which  allowed  a  locator  to  follow  the  dips  of  his 
ledge  indefinitely,  and  a  substitution  of  the  often-decried  Spanish  or  Mex- 

can   system   of   allotment Unfortunately,   the  trustees   of   the   Choller 

Company  could  not  be  persuaded  to  adopt  Mr.  Stewart's  views,  and  he  was 
reluctantly  obliged  to  abandon  his  project  and  continue  the  fight."  This 
role  of  Senator  Stewart  as  champion  of  the  vertical  boundary  system  will 
surprise  many  who  have  ignorantly  charged  him  with  having  originated 
the  extralateral  right  idea  in  America.  Comstock  Mining  &  Miners  by 
Lord  Monograph,  IV  U.  S.  G.  S.,  p.  145. 

The  Eureka  mining  district  of  Nevada  on  February  27,  1869,  adopted  a 
resolution,  declaring  that  the  mineral  in  that  district  was  found  in  the  form 
of  deposits  rather  than  in  true  fissure  veins  or  ledges  and  "Whereas  this 
deficiency  in  the  law  may  give  rise  to  expensive  litigations,"  square  claims 
with  vertical  boundaries  were  adopted.  Tenth  U.  S.  Census,  Vol.  XIV, 
pp.  551-2. 


304  CALIFORNIA  LAW  REVIEW 

of  the  West  to  have  the  long  exercised  right  of  free  mining  on 
the  public  domain  recognized  by  positive  legislation. 

When  the  bill  to  amend  the  Act  of  1866  was  introduced  in 
Congress  in  1870  and  1871  and  was  finally  enacted  in  1872,  no 
comment  whatsoever  was  made  on  the  extralateral  feature  during 
the  course  of  the  reported  debates.  Other  provisions  of  the  bill 
were  extensively  debated  and  altered  but  the  section  conferring 
the  extralateral  right  remained  unchanged  and  was  not  even 
criticised.2 

Decided  opposition  to  this  feature  of  the  mining  law  was 
definitely  expressed,  however,  before  the  Act  of  1872  had  been 
in  force  many  years.  By  Act  approved  March  3,  i879,3  Congress 
authorized  the  appointment  of  a  Commission  to  investigate  the 
operation  of  the  public  land  laws  of  the  United  States  and  make 
"such  recommendations  as  they  may  deem  wise  in  relation  to  the 
best  methods  of  disposing"  of  such  lands.  A  consideration  of 
public  mineral  lands  and  the  laws  governing  their  disposition 
naturally  came  within  the  scope  of  the  investigation  of  this  Com- 
mission. This  Commission  made  an  elaborate  report  in  i88o.4 

Commenting  on  the  creation  of  a  new  class  of  public  lands  in 
the  United  States ;  viz.,  mineral  lands,  resulting  from  the  discovery 
of  gold  in  California,  the  report  states  that  the  army  of  prospectors 
who  roamed  over  the  mountain  ranges  in  quest  of  speedy  wealth 
were  not  agriculturalists  in  search  of  homes  but  were  composed 
of  persons  who  desired  to  obtain  title  to  mines. 

"As  the  region  was  a  wilderness,  and  the  authority  of 
the  general  government  was  but  imperfectly  extended  over 
the  country,  the  miners  framed  for  themselves  regulations 
for  their  own  government — crude,  it  is  true,  but  in  a  general 
way  securing  justice.  Under  these  local  regulations  or  laws 
possessory  rights  to  mineral  lands  were  acquired  which  were 
afterwards  confirmed  by  statutory  law,  and  thus  this  second 


2  There  may  have  been  some  discussion  in  committee  but  these  proceed- 
ings were  not  reported  and  the  fact  that  the  elaborately  worded  apex 
section  granting  the  extralateral  right  remained  unchanged  throughout  all 
this  discussion  when  other  features  of  the  bill  were  being  radically  amended 
and,  as  finally  adopted  in  1872,  the  fact  that  this  section  was  identical  in 
language  with  the  corresponding  section  of  the  bill  that  had  been  introduced 
in  the  previous  session  of  Congress,  leads  to  the  conclusion  that  there  was 
then  no  serious  opposition  to  the  extralateral  right. 

320  Stats,  at  L.  394. 

*Pub.  Land.  Com.  Rep.  (Washington,  1880),  690  pp. 


EXTRALATERAL  RIGHTS  305 

class  of  lands  was  practically  recognized  in  the  administration 
of  land  affairs." 

The  Commission  pointed  out  that  if  this  land  had  been  in 
private  ownership  the  prospector  would  have  been  barred 

"and  the  mining  industry  which  has  so  rapidly  grown  up  in 
that  country  would  have  .been  delayed  for  years,  perhaps  for 
centuries 

"Free  exploration  and  the  right  to  acquire  property  in 
mines  by  discovery  led  to  the  establishment  of  the  great  min- 
ing industries  of  the  West Thus  a  wise  system  of 

administering  affairs  relating  to  mining  lands  must  recognize 
the  importance  of  discovery  in  which  poor  men  can  en- 
gage  5 

"The  United  States  mining  laws  of  1866  and  1872  are 
directly  descended  from  the  local  customs  of  the  early  Cali- 
fornia miners/'6 

Investigating  the  operation  of  these  mining  laws  which  spread 
from  California  throughout  the  West  and  which  "have  stemmed 
the  tide  of  Federal  land  policy  and  given  us  a  statute  book  with 
English  common  law  in  force  over  half  the  land  and  California 
common  law  ruling  in  the  other,"7  the  Commission  called  attention 
to  the  fact  that  east  of  the  Missouri,  mineral  development  was 
almost  exempt  from  litigation  growing  out  of  conditions  of  the 
government  conveyance  of  mineral  lands  while  in  the  west  it 
was  "a  history  of  the  most  frequent,  vexatious,  costly,  and  dam- 
aging litigation." 

"There  are  two  general   features   in  the   existing  statutes 
which   have   provoked   and   directed   the   main   lines   of   legal 
contest,  and  they  are,  first,  the  recognition  by  the  law  of  the 
local    customs    and    regulations;    second,    the   attempted    con- 
veyance of  a  lode,  ledge  or  deposit  of  rock  in  place  bearing 
mineral,  as  a  thing  separate  from  and  independent  of  the  sur- 
face tract  of  ground,  with  the  permission  to  follow  such  lode  or 
deposit   on   its   dip,   even   when    in   the   downward    course   it 
passes  beyond  the  side  lines  of  the  surface  claim."8 
Pointing  out  the  magnitude  of  the  evil  of  allowing  the  mining 
communities  the  right  of  local  regulation,  the  Commission  urged 
that  this  source  of  endless  litigation  should  be  promptly  abolished 
by  Congressional  enactment. 


5  Id.,  pp.  XIX-X. 
e  Id.,  p.  XXXII. 
7  Id.,  p.  XXXIV. 
s  Id.,  p.  XXXV. 


306  CALIFORNIA  LAW  REVIEW 

Taking  up  the  second  great  class  of  evils,  "those  incident  to 
the  theory  of  the  lode  or  ledge  location,"  the  Commission  makes 
the  following  comment: 

"It  has  proved  in  practice  and  in  law  that  a  lode  or  ledge 
is  an  absolutely  indefinite  thing,  and  the  act  of  following 
this  formation  whose  nature  and  limits  can  not  be  fixed  be- 
yond the  locator's  surface  ground  and  under  the  surface 
ground  of  another  owner,  is  the  most  frequent  and  vexatious 
cause  of  litigation." 

This  right  to  follow  a  lode  into  the  ground  of  another  works 
"a  minimum  of  mischief  in  the  case  of  a  well  defined  fissure  vein 
of  regular  course  and  dip." 

"With  such  a  defined  fissure  vein,  by  spending  many 
thousand  dollars  and  provided  his  cloud  of  expert  witnesses 
are  not  tripped  up  by  clever  cross-examination,  and  the  judge 
is  impartial,  and  the  jury  are  not  corruptly  influenced  against 
him,  after  many  months  and  perhaps  years,  during  which  his 
enterprise  has  been  hand-cuffed  with  injunctions  and  himself 
reduced  to  poverty,  the  owner  might  derive  whatever  hollow 
comfort  he  could  from  a  victory  which  left  him  ruined."9 

"From  this  somewhat  favorable  working  of  the  law"  the  Com- 
mission went  on  with  the  examination  of  other  classes  of  cases 
involving  complex  vein  occurrences  and  pointed  out  the  impossi- 
bility of  reconciling  these  with  the  practical  workings  of  the  law 
of  apex. 

"Your  Commission,  after  a  review  of  the  lines  of  mining 
contests  and  a  consideration  of  the  complex  nature  of  ore  de- 
posits, are  unanimous  in  the  conviction  that  any  attempt  on 
the  part  of  the  United  States  to  convey  such  deposits  as 
individual  things  beyond  the  vertical  planes  bounding  the 
surface  claim,  must  always  end  in  a  history  of  intolerable 
injustice." 

It  therefore  recommended  a  repeal  of  the  extralateral  right 
and  the  substitution  of  the  common-law  system  of  vertical  boun- 
daries in  its  stead.10 

The  Commission  submitted  to  Congress  a  draft  of  a  proposed 

9  This  is  rather  a  sorry  picture  and  while  somewhat  overdrawn  would 
indicate  that  some  at  least  of  the  Public  Land  Commission  had   come  in 
contact  with  extralateral  litigation. 

10  Pub.  Land  Corrt.  Rep.   (Washington,  1880),  pp.  XXXVII-XLI.     The 
fact  that   this   commission   included   in   its   number   such    eminent    men   as 
Clarence   King,   Thomas  Donaldson,  J.   W.   Powell   and  J.   A.   Williamson, 
gave  this  report  more  than  ordinary  weight. 


EXTRALATERAL  RIGHTS  307 

Public    Land    law    which    contained    among   other   provisions    the 
following  : 

"Section   169. — Any   mining   claims   located   after   the 

day  of  —  1880,  shall  be  bounded  as  to  surface  by  straight 
lines,  and  all  right  to  minerals  contained  therein  shall  be 
confined  within  vertical  planes  passing  downward  through 
said  straight  boundary  lines." 

"Section  170. — A   mining   claim   located   after  —   day   of 

may  equal  but  shall  not  exceed  a  square  of feet 

on   the   side,    and   the   same   may   be   in   any   shape,   so    that 

neither   length   nor   breadth   shall   exceed  feet,   nor   the 

aggregate  area  exceed  that  of  the  square  hereinbefore  first 
described/'11 

Concerning  the  area  of  the  common  law  mining  claim  the 
Commission  made  no  recommendation  since  it  had  not  received 
ua  full  expression  of  popular  opinion,"  and  that  question  was 
remitted  to  the  legislative  judgment  of  Congress.12 

Assuming  that  it  were  desirable  to  abolish  the  extralateral 
right,  this  was  the  most  favorable  time  to  have  eliminated  it. 
The  Act  of  1872  had  been  in  force  only  eight  years  and  to  have 
wiped  out  the  law  of  apex  at  that  time  would  have  resulted  in 
infinitely  less  hardship  and  readjustment  than  must  inevitably 
follow  if  that  right  be  abolished  after  the  Act  has  been  in  force 
for  nearly  half  a  century.  Since  this  report  of  the  Public  Land 
Commission  was  issued,  the  attempt  to  repeal  this  feature  of  the 
mining  law  has  been  urged  at  intervals.13  In  recent  years  this 
sentiment  has  increased  to  such  a  marked  degree,  and  the  abolition 
of  the  right  is  now  advocated  by  so  many  distinguished  mining 
authorities  and  leading  mining  associations14  that  the  subject  de- 
mands serious  consideration.15  Most  of  this  agitation,  however, 
has  thus  far  been  entirely  too  much  engrossed  with  partisan  con- 
demnation of  the  law  of  apex,  while  but  slight  consideration  has 
been  given  to  the  principles  underlying  the  origin  and  exercise 


n  Id.,  p.  LXXVIII. 

12  Id.,  p.  XLI. 

13  See  the  files  of  the   Mining  &  Scientific  Press   and   Engineering  & 
Mining  Journal. 

14  Senate  Document  No.  233   (64th  Congress,  1st  Session).     Report  of 
Meeting  of  the  Mining  &  Metallurgical  Society  of  America  in  collaboration 
with   the  American   Mining   Congress,   the   American    Institute    of    Mining 
Engineers,  etc. 

15  There  were  several  bills  introduced  in  the  64th  Congress,  providing 
either    for    the    outright    repeal    of    the    extralateral    right    or    profoundly 
amending  the  mining  law  in  many  respects. 


308  CALIFORNIA  LAW  REVIEW 

of  the  right  and  those  features  which  furnish  some  measure  of 
justification  for  its  existence ;  and,  most  important  of  all,  prac- 
tically no  thought  has  been  directed  to  the  consequences  which 
must  inevitably  flow  from  an  outright  repeal.  These  conse- 
quences are  exceedingly  vital  and  far  reaching  and,  unless  the 
anti-extralateral  advocates  can  furnish  some  practical  solution 
which  will  minimize  the  mischief,  the  advocacy  by  many  of  them 
of  outright  repeal  of  the  extralateral  and  discovery  features  of 
the  mining  law  without  a  corresponding  readjustment  of  our  public 
land  laws  all  along  the  line  to  meet  this  sweeping  change,  is  going 
to  produce  results  which  will  be  most  detrimental  to  the  mining 
industry. 

THE  EXTRALATERAL  RIGHT  PRINCIPLE  is  IDEAL  IN  THEORY. 

It  is  generally  conceded  that  the  fundamental  principle  of  the 
extralateral  right  is  ideal  in  theory.  The  statements  of  those  who 
have  analyzed  the  situation  surrounding  the  occurrence  of  lode 
or  vein  deposits  and  who  have  pointed  out  the  lack  of  any  essential 
relation  between  veins  or  mineral  deposits  in  depth  and  the  over- 
lying surface  amply  support  the  principle  of  severance.16  All  that 
one  has  to  do  is  to  picture  a  vein  dipping  at  an  angle  into  the 
earth  and  visualize  the  result  of  vertical  planes  passed  through 
surface  boundaries  cutting  off  the  right  to  mine  on  the  vein  in 
depth  at  various  points.  Take  the  case  where  there  are  several 
veins  dipping  either  parallel  to  each  other  or  at  varying  angles 
and  realize  the  complex  condition  that  would  result  if  overlying 
surface  ownership  controlled  and  vertical  planes  were  projected 
downward  to  chop  these  veins  up  into  segments  of  varying  size 
and  at  different  depths.  Then  conceive  of  the  ideal  condition 
under  the  extralateral  law  where  the  apex  proprietor  can  follow 
a  certain  length  of  vein  down  indefinitely  on  its  dip  no  matter 
where  it  leads.  The  practical  result  where  veins  are  controlled 
by  surface  ownership  and  chopped  up  into  segments  of  varying 
size  and  at  varying  depth  is  to  bring  about  an  attempt  to  consoli- 
date the  right  to  mine  on  the  vein  and  thus  sever  the  under- 
ground rights  from  the  surface  rights  and  make  them  independent 
of  one  another.  Only  by  this  means  can  veins  be  most  economi- 
cally operated.  The  intent  of  the  extralateral  law  was  to  ac- 


16  4  California  Law  Review,  pp.  371-374,  388;  4  California  Law  Review, 
pp.  456-458. 


EXTRALATERAL  RIGHTS  309 

complish  this  result  in  the  first  instance  and  avoid  the  necessity 
of  subsequent  consolidation,  and  hence  the  extralateral  law  is 
based  on  the  fundamental  conception  of  economic  operation. 

But,  unfortunately,  though  the  extralateral  law  is  ideal  in 
theory,  it  is  far  from  ideal  in  practical  results.  If  veins  were 
ideal,  with  regular  width  and  dip  and  strike,  the  extralateral  law 
would  work  to  perfection  and  no  one  could  seriously  advocate 
any  change.  Veins  are,  however,  so  complex  in  their  occurrence 
with  branches,  faults,  splits,  junctions  and  every  conceivable  varia- 
tion in  strike  and  dip  and  width,  and  degree  of  mineralization, 
that  no  matter  how  well  the  law  of  the  extralateral  right  may 
become  settled,  there  will  always  be  disputes  arising  over  these 
physical  vagaries.17 

The  candid  investigator  must  admit  that  because  of  this  situa- 
tion the  extralateral  law  is  open  to  serious  objection.  Just  how 
serious  these  objections  are  and  whether  they  justify  such  drastic 
action  as  an  outright  repeal  of  this  feature  of  the  law  will  next 
be  considered. 
THE  MAIN  REASON  FOR  ELIMINATING  THE  EXTRALATERAL  RIGHT. 

If  we  analyze  the  arguments  advanced  by  those  who  advocate 
abolishing  the  extralateral  right,  we  find  that  they  practically  all 
resolve  themselves  into  the  objection  based  on  an  excessive  amount 
of  litigation.18 

It  has  been  assumed  by  most  of  these  critics  without  investi- 


17  "We  propose  to  abolish  the  law  of  apex  not  because  the  theory  is 
objectionable  but  because  the  question  of  physical  fact  gives  rise  to  never 
ending  litigation."     Victor  G.  Hills,  in  Transactions  of  American  Institute 
of  Mining  Engineers,  Dec.  1916,  p.  2200. 

18  A   critical   examination   of   the    statements   made   by  those   who    are 
opposed  to  the  retention  of  the  extralateral  right  as  reported  at  the  meet- 
ing of  the  Mining  &  Metallurgical  Society  of  America   (Dec.  16,  1915)   dis- 
closes that  the  main  reason  advanced  for  the  repeal  of  the  law  was  "con- 
tinuous   litigation,"    "uncertainties    of    title    and    litigation,"    "vexatious    and 
most   burdensome   litigation,"    etc.      See    Senate   Document    No.    233    (64th 
Congress,    1st   Session)  ;    also   Bull.   No.   91,   Vol.   VIII,    No.    12,    Mining   & 
Metallurgical  Society  of  America.     See  also  the  expressions  of  opinion  con- 
tained in  Transactions  of  the  American  Institute  of  Mining  Engineers,  Vol. 
XLVIII,  pp.  368-371,  in  paper  entitled  "Why  the  Mining  Laws  Should  Be 
Revised,"  by  Horace  V.  Winchell. 

Aguillon  in  Legislation  des  Mines  Etrangere  (1891),  Vol.  II,  p.  292, 
mentions  the  historical  lawsuits  which  have  arisen  in  America  through  the 
right  to  follow  mineral  deposits  downward  indefinitely  under  adjoining 
surface. 

"The  law  of  the  apex  has  proved  more  productive  of  expensive  litiga- 
tion than  economical  mining."  Annual  Report  of  Director  of  U.  S.  G.  S. 
(1911),  p.  15. 


310  CALIFORNIA  LAW  REVIEW 

gation  that  extralateral  litigation  is  a  common  occurrence  in  the 
various  mining  camps  and  has  become  a  great  burden  which  is 
seriously  hampering  the  mining  industry.  A  careful  examination 
of  the  statistics  leads  one  to  believe  that  the  real  situation  has 
been  exaggerated.  There  has  been  much  expensive  litigation  but 
it  must  also  be  borne  in  mind  that  because  of  the  magnitude  of 
the  interests  involved,  such  mining  cases  attract  more  than  their 
due  share  of  public  attention.19  Taking  into  consideration  the 
immense  importance  of  the  mining  industry  and  the  fact  that 
its  operations  are  spread  over  such  a  vast  territory  in  the  West, 
the  wonder  is,  not  that  there  are  so  many  extralateral  cases  aris- 
ing, but  that  there  are  comparatively  so  few.  A  careful  analysis 
of  the  law  reports  and  tabulation  of  all  extralateral  cases  appear- 
ing therein20  indicates  that  during  the  years  1870-1916  inclusive, 
in  all  of  the  western  states  there  has  been  an  average  of  less 
than  three  extralateral  cases  per  annum  which  have  been  reported.21 

The  reported  cases  do  not,  of  course,  include  all  the  extralateral 
cases  which  have  arisen  within  this  period,  but  they  do  include 
the  more  important  cases  and  afford  a  very  reliable  criterion  of 
the  proportion  of  cases  arising  in  the  various  years.  The  tabula- 
tion indicates  that  the  maximum  of  reported  cases  was  reached 
in  the  year  1902  when  ten  cases  were  reported.22  Since  1902  the 
number  of  reported  cases  has  steadily  decreased  so  that  for  the 
past  decade,  excluding  duplications  of  the  same  case,  extralateral 
litigation  has  not  averaged  two  reported  cases  a  year.  During 
the  years  1908  and  1911  there  were  no  extralateral  cases  whatever 
reported. 

The  federal  extralateral  decisions  of  the  trial  courts  usually 
find  their  way  into  the  reports  because  of  their  importance.  The 
extralateral  decisions  in  the  state  trial  courts  are  not  found  in 


19  In  a  similar  way,  because  criminal  trials  are  heralded  with  head  lines 
in  the  daily  press,  it  is  little  wonder  that  the  erroneous  idea  is  prevalent 
that  the  legal  profession  devotes  the  greater  part  of  its  time  to  criminal  law. 

20  The  writer  acknowledges  his  indebtedness  to  Mr.  Herbert  C.  Hoover 
for  permission  to  use  material  which  was  tabulated  at  his   request  by  Mr. 
Robert  M.   Searls  of  the   San  Francisco  Bar.     Mr.   W.  J.  Aschenbrenner, 
also  of  the  San  Francisco  Bar,  has  continued  this  tabulation  to  date. 

21  This  estimate  does  not  include  the  decisions  on  appeal   from  lower 
courts  where  the  same  case  is  reported  below,  since  these  appellate  decisions 
would  represent  a  duplication  of  cases  already  considered. 

22  Many  of  these  arose  out  of  the  Heinze-Anaconda  battles  in   Mon- 
tana and  most  of  the  remainder  were  connected  with  the  Cour  dAlene  crop 
of  litigation. 


EXTRALATERAL  RIGHTS  311 

the  reports  but  these  cases  are  of  such  magnitude  that  they  often 
reach  the  state  appellate  courts.  The  tabulation,  therefore,  in- 
cludes practically  all  of  the  extralateral  cases  which  have  arisen 
during  the  past  forty-five  years,  except  the  few  cases  which  were 
not  carried  beyond  the  state  trial  courts.  It  is,  of  course,  im- 
possible to  arrive  at  the  exact  number  of  these  unreported  cases 
and  determine  the  percentage  they  bear  to  the  reported  cases,  but 
judging  from  actual  information  obtained  in  many  of  the  impor- 
tant western  mining  states,  it  is  doubtful  if  the  number  of  these 
unreported  cases  arising  in  the  state  courts  would  much  exceed 
twenty-five  per  cent  of  the  total  number  of  reported  cases.  This 
would  increase  the  average  number  of  extralateral  cases  arising 
during  the  past  forty-five  years  to  slightly  in  excess  of  three  cases 
per  annum.  Even  assuming  that  the  average  number  of  unreported 
cases  were  equal  in  number  to  the  cases  actually  reported,  the 
total  annual  average  would  be  less  than  six  cases,  with  the  past 
decade  showing  a  material  decrease  even  in  this  small  number. 

It  would  hardly  seem  that  these  few  cases  arising  in  the  en- 
tire West,  especially  where  an  industry  of  such  magnitude  and 
importance  as  that  of  lode  mining  is  involved,  would  justify  the 
extravagant  statements  that  have  been  made  by  some  who  urge 
the  abolition  of  the  right.23  It  must  be  remembered  that  this 
charge  of  excessive  litigation  is  the  main  reason  urged  for  re- 
pealing the  "law  of  apex." 

The  deductions  of  the  writer  as  to  the  comparatively  small 
amount  of  extralateral  litigation  which  has  arisen,  when  we  con- 
sider the  vast  number  of  lode  mines  being  operated  throughout 
the  West  under  the  extralateral  law,  is  corroborated  by  an  in- 
dependent line  of  investigation  made  by  Charles  H.  Shamel,  the 
author  of  "Mining,  Mineral  &  Geological  Law."  Proceeding  along 
entirely  different  lines,  he  examined  the  syllabuses  of  all  of  the 
cases  reported  in  Morrison's  Mining  Reports  which  contain  all 
of  the  important  mining  decisions  reported  in  the  United  States 
during  the  past  half  century.  He  arrived  at  the  following  result: 

23  The  comparative  infrequency  of  extralateral  cases  is  illustrated  by 
the  fact  that  no  extralateral  case  has  yet  appeared  in  the  reports  from 
Alaska,  and  thus  far  only  one  has  been  reported  from  Arizona.  In  Cali- 
fornia, which  was  the  birthplace  of  the  law  of  apex,  the  reported  cases 
have  averaged  one  for  each  three-year  period  during  the  past  forty-five 
years.  During  the  past  decade  there  has  been  no  reported  case  arising  in 
California.  Two  unreported  cases  have  been  tried  and  decided  in  Cali- 
fornia during  that  period. 


312  CALIFORNIA  LAW  REVIEW 

"I  confess  that  I  was  surprised  at  the  actual  figures.  The 
total  number  of  syllabuses  in  the  22  volumes  of  decisions  is 
5,808,  of  which  the  number  concerning  the  apex  law  is  115. 

The  apex  cases  are  only  about  1.9  per  cent  of  the  whole 

Instead  of  causing  99.9  per  cent  of  mining  litigation,  as  Dr. 
Raymond  has  somewhere  stated,  it  has  caused  much  less  than 
its  proportionate  share  of  the  trouble.  Facts  are  stubborn 
things.  The  chief,  the  constantly  reiterated,  the  convincing 
argument,  against  the  apex  law  is  based  on  a  gross  mistake 
as  to  the  facts  in  the  case."24 

Hon.  Charles  S.  Thomas,  one  of  the  United  States  senators 
from  Colorado,  who,  as  an  eminent  mining  attorney  is  well  quali- 
fied to  speak  on  the  subject  of  mining  litigation,  corroborates  this 
view  as  to  the  ratio  of  extralateral  cases  as  compared  to  general 
mining  litigation.  He  says : 

"Now  the  vast  amount  of  mining  controversy — and  I  am 
speaking  of  numbers  of  actions — has  not  been  apex  litigation. 
They  have  been  the  most  expensive  and  the  most  far  reach- 
ing. They  have  perhaps  resulted  in  the  greater  proportion 
of  injustice;  but  the  conflicting  (surface)  locations  have  pro- 
duced that  multitude  of  cases,  a  small  percentage  of  which 
perhaps  reach  the  Court  of  Appeals,  but  whose  aggregate  has 
burdened  the  prospector  and  locator  with  an  expense  almost 
unbearable."25 

It  is  not  therefore  an  excessive  amount  of  litigation  which 
can  be  legitimately  charged  to  the  extralateral  right,  for  the  actual 
number  of  cases  arising  is  surprisingly  small — insignificant  even, 
when  compared  with  the  vast  number  of  claims  exercising  this 
right — but  rather,  the  only  valid  charge  on  this  score  which  can 
be  made,  is  the  great  expense  incident  to  such  few  cases  as  arise.26 
Valid  criticism  must  be  based  on  expensive  litigation  and  not  on 
the  ground  of  excessive  litigation. 

PRACTICAL  DIFFICULTIES  OF  REVISION. 

The  advocates  of  the  repeal  of  the  law  of  apex  have  given  but 
little  consideration  to  the  serious  consequences  which  will  in- 

24  "Should   the   Apex   Law   be   now    Repealed?"      Transactions    of    the 
American  Institute  of  Mining  Engineers,  Vol.  XLVIII,  p.  312. 

25  Senate   Document  No.  233    (64th   Congress,   1st   Session),   p.  65. 

26  The  vast  amount  of  costly  litigation  arising  in  the  oil  fields  of  Cali- 
fornia is    strong   proof   that   the   vertical   boundary    system   is   not   immune 
from    this    evil.      Shamel    cites    the    famous    litigation    involving    vertically 
bounded  zinc  deposits   in  New  Jersey,   lasting   for   nearly   half   a   century. 
Transactions   of   American    Institute    of    Mining   Engineers,    Vol.    XLVIII, 
p.  347. 


EXTRALATERAL  RIGHTS  313 

evitably  result  unless  other  features  of  our  public  land  law  are 
simultaneously  profoundly  amended. 

The  greatest  practical  difficulty  which  will  follow  from  abol- 
ishing the  extralateral  right  and  confining  a  locator  to  the  mineral 
found  within  the  vertical  boundaries  of  his  location,  is  the  fact 
that  only  in  those  locations  which  embrace  the  apex  of  the  vein 
can  a  discovery  of  mineral  be  readily  made.  Discovery  of  mineral 
within  the  boundaries  of  the  location  is  the  most  vital  essential 
of  our  existing  mining  law.27 

Locations  which  include  the  apices  or  upper  portions  of  the 
veins  within  their  boundaries  could  still  readily  meet  this  impor- 
tant requirement  of  discovery,  but  surface  locations  overlying  the 
dip  of  the  vein  at  considerable  distances  from  the  apices  or  upper 
terminal  edges  of  the  veins  could  meet  the  discovery  requiremnet 
only  after  the  locators  had  expended  considerable  labor  and  time 
in  sinking  shafts  to  encounter  the  vein  in  depth.  As  the  vein 
dipped  further  into  the  earth  it  would  be  increasingly  difficult 
to  make  a  discovery  within  the  vertical  boundaries  of  the  overlying 
locations  and  finally  at  great  depth  the  expense  of  sinking  of  such 
shafts  would  be  absolutely  prohibitive.  It  would  be  necessary 
under  existing  discovery  requirements  to  sink  vertical  shafts  on 
each  surface  location  in  order  to  perfect  a  discovery  on  each  claim 
and  there  would  be  a  consequent  economic  waste  resulting  from 
the  expense  of  unnecessary  duplication  of  such  shafts.  Under 
the  extralateral  law  as  it  now  exists  a  discovery  on  the  apex  of 
the  vein  is  sufficient  and  the  vein  may  be  developed  to  great  depth 
by  a  single  shaft  advantageously  situated. 

The  consistent  advocates  of  the  abolition  of  the  extralateral 
right  cheerfully  concede  that  this  practical  difficulty  is  a  serious 
one  and  they  are  therefore  forced  to  urge  that  the  discovery  re- 


27  "Discovery  is  the  all-important  fact  upon  which  title  to  mines  de- 
pends." Lawson  v.  United  States  Mining  Co.  (1907),  207  U.  S.  1,  13, 
52  L.  Ed.  65,  28  Sup.  Ct.  Rep.  15.  Discovery  is  the  initial  fact  without 
which  no  rights  to  mineral  lands  can  be  acquired.  Creede  and  Cripple 
Creek  M.  and  M.  Co.  v.  Uinta  T.  M.  &  T.  Co.  (1905),  196  U.  S.  337,  345, 
49  L.  Ed.  501,  25  Sup.  Ct.  Rep.  266.  Discovery  is  the  source  of  title  to 
mining  claims  and  the  first  discoverer  must  be  protected  in  the  possession 
of  his  claim.  "Otherwise,  the  whole  purpose  of  allowing  free  exploration 
of  the  public  lands  for  the  precious  metals  would  in  such  cases  be  defeated, 
and  force  and  violence  in  the  struggle  for  possession,  instead  of  previous 
discovery,  would  determine  the  rights  of  claimants."  Ehardt  v.  Boaro 
(1885),  113  U.  S.  527,  535,  28  L.  Ed.  1113,  5  Sup.  Ct.  Rep.  560. 


314  CALIFORNIA  LAW  REVIEW 

quirement  of  our  mining  law  be  abolished  also.28  Those  who  are 
familiar  with  the  main  features  of  our  existing  mining  law  will 
at  once  appreciate  that  if  these  two  fundamental  features — dis- 
covery and  extralateral  right — are  eliminated,  that  our  system  of 
American  mining  law  built  up  as  a  result  of  the  years  of  exper- 
ience and  intelligence  of  the  practical  pioneer  miners  will  have 
been  virtually  emasculated.  Very  little  more  than  an  empty  shell 
will  remain. 

Let  us  pause  for  a  moment  to  examine  critically  just  where 
this  radical  alteration  will  lead.  Many  critics  have  stated  that 
the  discovery  requirement  is  a  feature  characteristic  of  American 
mining  law  exclusively  and  that  it  is  a  useless  requirement  un- 
necessarily suffered  by  the  American  miner.  Both  of  these  state- 
ments are  erroneous.  The  discovery  requirement  is  characteristic 
of  most  of  the  systems  of  mining  law  in  the  world.29 

The  elimination  of  the  discovery  feature  from  our  law  would 
wipe  out  the  simplest  and  most  practical  form  of  test  as  to 
whether  land  is  mineral  or  not.  As  the  writer  has  already  pointed 
out  in  an  article  discussing  the  proposal  to  abolish  the  discovery 
requirement,30  it  would  be  a  grave  mistake  to  eliminate  this  salu- 
tary provision  from  our  law.  Such  elimination  would  destroy 
the  simple  test  whereby  mineral  lands  are  now  practically  and 
easily  classified  under  existing  law  so  that  mineral  locators  are 
able  to  readily  defeat  agricultural  claimants  desiring  to  obtain 
the  same  lands.  The  only  alternative  test  that  has  been  suggested 
would  be  to  leave  such  classification  to  an  appropriate  branch  of 
the  Federal  Government.  Even  this  alternative  would  be  open 
to  serious  objection.  It  would  substitute  the  opinion  of  mineral 
experts  and  representatives  of  the  Federal  Government  as  to 
mineral  character  of  land  in  place  of  the  views  of  the  practical 
miner;  it  would  mean  aggravating  delays  where  mines  were  dis- 

28  "You    cannot    abolish   the    extralateral    right   without    abolishing    the 
right  of  discovery.     They  are  all  tied  up  together."     Transactions  of  Ameri- 
can Institute  of  Mining  Engineers,  Vol.  XLVIII,  p.  383. 

29  "Discovery  in  all  ages  and  all   countries  has  been   regarded   as   con- 
ferring rights  or  claims  to  reward.     Gamboa,  who  represented  the  general 
thought  of  his  age  on  this  subject,  was  of  the  opinion  that  the  discoverer 
of  mines  was  even  more  worthy  of  reward  than  the  inventor  of  a  useful 
art.     Hence,   in   the  mining  laws   of   all   civilized   countries   the   great   con- 
sideration   for    granting    mines    to    individuals    is    discovery."      Lindley    on 
Mines,   p.  335. 

30  "Revision  of  the  Mining  Law — Discovery,"  3  California  Law  Review 
191;  Mining  &  Scientific  Press   (Feb.  7,  1914),  Vol.  108,  p.  246. 


EXTRALATERAL  RIGHTS  315 

covered  in  rugged  or  desert  regions  remote  from  centers  of  travel ; 
it  would  overturn  a  fundamental  principle  which  was  embodied 
in  our  mining  laws  by  the  pioneer  miners,  a  principle  which  was 
already  the  heritage  of  ages  of  mining  experience ;  and  finally  it 
would  tear  down  and  destroy  to  a  large  extent  the  great  body  of 
law  that  has  gradually  been  built  up  with  infinite  patience  and 
practical  wisdom  as  a  result  of  judicial  interpretation  operating 
through  more  than  half  a  century.  The  law  of  discovery  is  now- 
well  settled  and  understood  and  to  substitute  for  it  an  unknown 
and  untried  quantity  would  mean  another  period  of  uncertainty 
and  litigation  until  a  similar  line  of  interpretative  decisions  had 
been  rendered  with  respect  to  the  new  law.  This  superstructure 
of  judicial  interpretation  is  as  important  a  part  of  the  law  and 
is  as  necessary  for  its  satisfactory  working  as  is  the  organic  law 
which  it  interprets.  It  is  even  more  important  in  one  sense,  for 
the  organic  law  may  be  created  "overnight"  as  it  were,  while  the 
interpretation  and  harmonizing  of  this  organic  law,  especially  in 
its  relation  to  other  laws,  necessarily  takes  years  to  accomplish. 

Another  practical  difficulty  to  which  the  elimination  of  the 
extralateral  right  will  give  rise  and  which  must  not  be  overlooked 
is  the  fact  that  in  certain  of  the  western  states  condemnation 
of  private  rights  of  way  for  mining  purposes  is  not  permissible.31 

The  courts  of  these  states  have  not  taken  the  broader  view 
followed  in  other  states  where  it  is  held  that  the  public  welfare 
is  so  dependent  upon  the  mining  industry  that  a  private  mining 
operator  can  exercise  the  right  of  condemnation  for  rights  of  way 
for  mining  purposes.32 

The  practical  effect  of  the  abolition  of  the  extralateral  right 
in  those  states  which  deny  the  miner  such  a  right  of  condemna- 

31  Inspiration   Consolidated   Copper   Co.   v.   New   Keystone   Copper    Co. 
(1914),   16  Ariz.  257,   144  Pac.  277;    Consolidated   Channel    Co.   v.    Central 
Pacific  R.  R.  Co.   (1876),  51  Cal  269;  Lorenz  v.  Jacob  (1883),  63  Cal.  73; 
Amador    Queen    Mining   Co.   v.    Dewitt    (1887),    73    Cal.   482,    15    Pac.    74, 
County  of  Sutter  v.  Nicols   (1908),   152  Cal.  688,  694,  93  Pac.  872;   Const, 
of  New  Mexico,  §22;  Const,  of  North  Dakota,  Art.  1,  §  14;  Const,  of  South 
Dakota,  Art.  VI,  §  13;  Const,  of  Washington,  Art.  1,  §  16,  Art.  XII,  §  10. 

32  People  v.  District  Court  (1888),  11  Colo.  147,  17  Pac.  298;  Baillie  v. 
Larson   (1905),   138  Fed.  177;  Ellinghouse  v.  Taylor   (1897),  19  Mont.  462, 
48  Pac.   757;   Dayton   Gold  and   Silver   Mining   Co.   v.    Seawell    (1876),    11 
Nev.  394,  408;  Overman  Silver  Mining  Co.  v.  Corcoran  (1880),  15  Nev.  147; 
Byrnes  v.  Douglass    (1897),  83   Fed.  45;   Strickley  v.   Highland   Boy  Gold 
Mining  Co.    (1906),   200  U.  S.  527,  50  L.  Ed.  581,  26  Sup.   Ct.   Rep.  301. 
For   an   excellent  discussion   of   these   divergent   holdings,    see   Lindley   on 
Mines,  §§253-264. 


316  CALIFORNIA  LAW  REVIEW 

tion  would  be  to  render  him  unable  to  operate  as  one  mine  two 
separated  segments  of  the  vein  underlying  two  separated  parcels 
of  surface  land  owned  by  him  where  the  intervening  surface 
owner  objected.  Under  existing  extralateral  law  he  has  the  right 
to  follow  his  vein  on  its  dip  irrespective  of  surface  ownership 
overlying  the  dip.33 

Another  consequence  of  the  elimination  of  the  extralateral 
right  would  be  to  make  the  ownership  of  overlying  surface  all 
important.  Under  existing  law  the  extralateral  claimant  fre- 
quently is  willing  to  make  a  material  concession  to  his  neighbor 
when  it  comes  to  a  dispute  as  to  the  ownership  of  surface  of  a 
portion  of  his  claim.  If  the  surface  in  controversy  does  not 
include  any  portion  of  the  apex  of  the  vein,  the  surface  right  fre- 
quently does  not  assume  sufficient  importance  to  justify  litiga- 
tion and  controversies  are  usually  amicably  settled  or  the  surface 
proprietor  bought  out  for  a  comparatively  small  sum.  If  the 
right  to  the  vein  should  become  entirely  dependent  upon  surface 
ownership,  as  is  the  result  where  no  extralateral  right  exists,  it 
is  obvious  that  surface  title  becomes  so  vital  that  surface  dis- 
putes would  materially  increase  in  number  and  be  contested  far 
more  bitterly  than  in  the  past.  The  inevitable  result  would  be  to 
create  an  additional  crop  of  surface  litigation  to  take  the  place 
of  extralateral  litigation. 

Practically  all  of  the  states  of  the  West  have  also  legislated 
on  the  subject  of  mining  law,  supplementing  the  mining  laws  of 
Congress.  Most  of  these  have  embodied  in  their  legislation  the 
extralateral  provisions  of  the  federal  statutes.  While  action  by 
Congress  abolishing  the  extralateral  right  would  doubtless  have 
the  effect  of  rendering  these  state  statutes  on  the  same  subject  in- 
operative, yet  it  would  become  necessary  for  each  state  to  wipe 
this  legislation  off  its  statute  books  and  harmonize  its  laws 
with  the  enactments  Congress  might  see  fit  to  substitute  therefor. 

The  writer  does  not  pretend  to  assert  that  these  obstacles  are 
insuperable,  but  calls  attention  to  them  for  the  purpose  of  showing 
that  the  repeal  of  the  extralateral  law  is  going  to  be  attended  by 
far-reaching  results.  No  attempt  has  been  made  to  exhaust  the 
field  of  objectionable  consequences  which  will  flow  from  such  a 


33Lindley  on  Mines,   §568. 


EXTRALATERAL  RIGHTS  317 

repeal  and  as  a  matter  of  fact  many  serious  results  would  only 
become  apparent  years  after  the  experiment  had  been  put  in 
operation. 

Unavoidable  and  expensive  litigation  is  admittedly  a  valid  ob- 
jection to  the  continued  existence  of  the  extralateral  right.  But 
we  are  not  confronted  by  the  simple  situation  which  existed  prior 
to  the  adoption  of  this  right  to  follow  the  vein  into  the  depth. 
If  we  could  erase  the  slate  and  start  anew  in  the  light  of  our 
present  day  experience,  there  would  be  little  room  for  argument 
that  the  vertical  boundary  system,  while  opposed  to  the  natural 
economics  of  mining,  would  obviate  much  expensive  litigation 
and  on  the  whole  be  desirable.  But,  unfortunately,  we  can  not 
start  anew  and  we  are  confronted  with  the  practical  situation 
that  during  the  past  sixty-seven  years  there  have  been  thousands 
upon  thousands  of  claims  located  and  patented  under  the  law 
granting  extralateral  privileges  with  which  we  must  reckon,  as 
it  is  inconceivable  that  any  rights  already  vested  will  be  destroyed. 

To  have  two  fundamentally  opposed  systems  of  mining  law 
operating  side  by  side,  one  based  on  the  principle  of  severance 
of  mineral  from  the  surface  and  the  other  based  on  surface 
ownership  carrying  with  it  the  right  to  everything  situated  ver- 
tically beneath,  would  not  tend  to  a  simplification  of  our  mining 
laws  nor  to  their  ready  understanding  by  those  who  would  avail 
themselves  of  their  benefits,  but  would  inevitably  add  an  increasing 
number  of  problems  to  be  litigated  in  the  courts.34 

The  fact  that  the  primary  questions  involved  in  the  interpre- 
tation of  the  extralateral  feature  of  the  Mining  Act  have  largely 
been  set  at  rest  by  the  Supreme  Court  of  the  United  States  is 
reflected  by  the  diminishing  number  of  cases  involving  extralateral 
rights  which  are  presented  to  the  courts  each  year,  and  this  in 
spite  of  the  continually  increasing  number  of  locations  and  oper- 
ating mines  where  such  questions  might  be  raised.  There  are 
questions  of  extralateral  right  law  still  undetermined  but  these 
are  becoming  fewer  in  number  each  year.  Most  of  the  important 


34  "The  apex  theory  of  tracing  title  to  a  lode  has  led  to  much  litigation 
and  dispute  and  ought  not  to  have  become  the  law,  but  it  is  so  fixed  and 
understood  now  that  the  benefit  to  be  gained  by  a  change  is  altogether 
outweighed  by  the  inconvenience  that  would  attend  the  introduction  of  a 
new  system."  From  President  Taft's  Speech  at  Conservation  Congress, 
Minneapolis,  Sept.  5th,  1910. 


318  CALIFORNIA  LAW  REVIEW 

questions  have  been  adjudicated.  Because  there  are  still  some 
problems  awaiting  determination  is  not  a  valid  reason  for  wiping 
out  the  great  framework  of  judicial  construction  of  the  apex 
statute  which  has  been  built  up  during  half  a  century.35  Time 
will  serve  to  eliminate  virtually  all  of  the  questions  of  strict  law 
which  may  arise  over  this  subject  but  we  cannot,  of  course, 
eliminate  the  questions  of  fact  as  to  continuity  and  identity  of  vein 
occurrences  which  arise  wherever  complex  vein  conditions  exist. 
Such  extralateral  questions  will  continue  to  arise  and  the  great 
expense  incident  to  the  trial  of  these  problems  is  admittedly  a 
grave  objection  to  the  continued  operation  of  the  law  of  apex. 
But  these  cases  will  arise  in  any  event  in  connection  with  rights 
already  vested  and  a  repeal  of  existing  law  will  not  eliminate 
any  extralateral  rights  which  came  into  existence  theretofore. 

Many  of  those  who  favor  revision  of  our  mining  laws  seem 
to  have  the  idea  that  if  a  particular  law  gives  rise  to  litigation 
all  that  has  to  be  done  to  remedy  the  situation  is  to  amend  the 
law  or  substitute  a  new  law  in  its  place  and  that  litigation  will 
cease  automatically  if  the  proper  kind  of  a  substitute  law  is 
devised.  Unfortunately,  such  an  ideal  result  is  seldom  if  ever 
attained  in  actual  experience.  Until  the  expression  of  ideas  by 
means  of  language  has  been  reduced  to  an  exact  science  and  all 
people  think  in  the  same  terms,  it  is  not  possible  for  radical  leg- 
islation to  be  enacted  which  will  not  in  its  turn  have  to  run  the 
gauntlet  of  attack  based  upon  every  conceivable  ground  that  human 
ingenuity  can  devise.36  The  disposition  of  public  mineral  lands 
presents  a  complex  problem  and  the  dovetailing  of  such  a  law 
in  with  all  the  other  public  land  laws  is  no  easy  task.  In  in- 
numerable instances  a  new  law  must  come  in  conflict  with  rights 
that  have  vested  under  the  older  mining  law  which  it  will  sup- 
plant and  we  are  certain  to  have  a  new  crop  of  litigation  that  will 


35  "Xhe  large  number  and  wide  range  of  the  decisions  show  that  the 
value  of  mining  laws  depends  on  their  status  as  established  by  the 

courts "  Annual  Report  of  Director  of  the  Bureau  of  Mines  (1915), 

p.  35. 

38  "They  [the  elements  of  decision  contained  in  the  mining  statute]  are 
simple  enough  in  expression  but  the  contests  of  interest  and  ingenuity, 
induced  or  justified  by  physical  conditions,  have  given  rise  to  much  litiga- 
tion, and  quite  a  body  of  jurisprudence  has  been  erected  in  the  exposition 
of  the  rights  conferred  by  the  statute.  The  number  and  fullness  of  the  cases 
spare  us  much  discussion."  Stewart  Mining  Co.  vs.  Ontario  Mining  Co. 
237  U.  S.  350,  357-8. 


EXTRALATERAL  RIGHTS  319 

unquestionably  persist  for  years.  The  vital  question  is  whether 
the  benefits  to  be  derived  from  a  change  in  the  law  will  eventually 
outweigh  the  hardships  and  uncertainties  of  this  unavoidable 
period  of  statutory  interpretation  and  readjustment. 

A  SUGGESTED  REMEDY. 

As  a  matter  of  fact  the  situation  can  be  met  in  another  way 
and  valid  criticism  based  on  the  expense  of  extralateral  trials 
overcome  to  a  large  extent  by  reform  in  the  present  objectionable 
methods  of  handling  such  cases.37  It  is  admitted  that  the  reform 
would  have  to  be  radical  but  it  is  worth  considering,  for  the  extra- 
lateral  right  is  bound  to  be  the  subject  of  adjudication  in  the 
future,  as  in  the  past,  at  least,  as  far  as  existing  vested  rights  are 
concerned. 

In  each  state  there  should  be  a  provision  added  to  its  laws 
whereby  a  judge,  specially  qualified  to  try  extralateral  cases,  could 
be  called  in  to  sit  where  such  rights  are  involved.  To  the  average 
judge  an  extralateral  suit  is  like  so  much  Greek  and  a  large  por- 
tion of  the  trial  is  taken  up  with  educating  the  court  on  the 
elementary  principles  involved.  Most  of  the  mining  laws  of  other 
countries  recognize  the  fact  that  mining  cases  involve  technical 
problems  that  can  not  be  satisfactorily  and  intelligently  adjudi- 
cated by  the  regular  courts  and,  consequently,  in  practically  all 
foreign  countries  a  special  tribunal  is  established  to  try  mining 
cases.38  In  some  countries  jurors,  even,  are  required  to  be  ex- 
perienced in  mining. 

Another  objectionable  feature  which  can  be  readily  improved, 
is  the  present  method  of  employment  by  each  side  of  an  army 
of  experts.'39  Practically  all  extralateral  cases  resolve  themselves, 


37  As  Charles  Shamel  says :    "The  fault  lies  not  with  the  apex  law,  but 
with   the    existing-   instruments   and    methods    of    legal    procedure."      Trans- 
actions of  American  Institute  of  Mining  Engineers,  Vol.  XLVIII,  p.  34. 

38  Any   one   who   was    familiar   with   the   trial    of   mining    cases   in   the 
federal   courts  before  judges   like   Hawley  or  Hallett,  who  thoroughly  un- 
derstood these  technical  mining  problems,  will   appreciate  the  great   saving 
of  time  and  expense  which  would  result  from  the  trial  of  technical   cases 
by  a  specially  qualified  judge. 

39  The  employment   of   experts  in  extralateral  litigation  is  not   an  un- 
mitigated evil.  In  many  cases  ore  bodies  of  considerable  value  have  been 
encountered  as  a  direct  result  of  litigation  work  or  suggestions  of  the  ex- 
perts  .and   in   many  mines   the    geological    conditions    are    slighted    and   but 
poorly  understood  until  an  extralateral  suit  is  instituted  and  then  the  first 
scientific  information  of  value  is  obtained  concerning  a  mining  camp. 


320  CALIFORNIA  LAW  REVIEW 

sooner  or  later,  into  a  battle  between  opposing  experts.  This 
results  in  great  expense  as  well  as  confusing  exaggeration  of 
structural  details  of  minor  importance.  In  a  great  majority  of 
cases  justice  could  be  as  readily  obtained  by  a  board  of  experts, 
one  to  be  selected  by  each  side  and  a  third  by  the  judge  of  the 
court,  the  expense  to  be  shared  equally  by  each  party.  These  ex- 
perts could  examine  the  properties  involved  and  make  a  report 
on  the  geological  occurrences.  They  would  agree  on  most  facts, 
and  where  there  was  a  difference  of  opinion  litigation  work  could 
be  ordered  to  further  develop  the  points  of  difference.  This  plan 
would  eliminate  much  of  the  expense  and  time  consumed  in  such 
trials.  The  court  would  accept  the  facts  agreed  on  as  proven 
and  confine  the  trial  to  disputed  issues.  This  plan  or  some  other 
framed  along  similar  lines  would  do  much  to  remove  the  stigma 
of  an  excess  of  expensive  litigation  to  which  the  extralateral  right 
is  now  properly  subject.  It  would  tend  to  minimize  the  existing 
evil  which  will  still  continue  to  abide  with  us  in  the  case  of  all 
existing  claims  and  would  obviate  a  plunge  into  untried  dangers 
and  hazards  which  are  bound  to  follow  a  radical  change  in  our 
present  law. 

If  it  is  litigation  we  wish  to  avoid,  then  why  not  also  take 
up  the  question  of  compelling  all  locations  in  the  future  to  con- 
form to  legal  subdivisions.40  By  requiring  lode  claims  to  be 
located  in  conformity  to  public  land  surveys  as  is  now  required 
in  the  case  of  placers  and  also  by  registering  all  locations  in  the 
land  offices,  it  will  readily  be  seen  that  a  vast  amount  of  litiga- 
tion arising  by  reason  of  conflicting  surface  rights  would  be  elimi- 
nated. An  amendment  of  the  mining  law  as  suggested  would 
eliminate  ten- fold  as  many  cases  as  would  be  eliminated  by 
abolishing  the  extralateral  right.  But  by  each  of  these  remedies 
the  advantage  of  economic  operation  of  the  ore  deposit  as  a 
geological  unit  would  be  sacrificed.  The  vein  on  its  dip  into  the 
earth  has  nothing  in  common  with  the  surface  and  to  parcel  it 
out  by  surface  area  and  vertical  boundaries  is  a  structural  misfit 
and  so  would  be  the  forcing  of  lode  locations  into  rectangular 
surface  areas  conforming  to  the  public  land  surveys.  Such  re- 
forms are  ideal  from  the  standpoint  of  minimized  litigation  but 


40  This  is  not  a  novel  suggestion.     See  Transactions  of  American  Insti- 
tute of  Mining  Engineers,  Vol.  XLVIII,  p.  422. 


EXTRALATERAL  RIGHTS  321 

intensely  impractical  from  the  standpoint  of  the  most  economic 
mining  of  the  ore  deposits. 

MOST    COUNTRIES    RECOGNIZE    SEVERANCE    OF    MINERALS    FROM 

SURFACE. 

One  vital  point  must  not  be  overlooked  in  this  discussion. 
Most  of  the  mining  laws  of  other  countries  recognize  severance 
from  the  surface  itself  of  minerals  lying  underneath  the  surface.41 
The  owner  of  the  surface  does  not  usually  own  the  minerals  lying 
in  depth  beneath  his  surface  but  a  separate  property  exists  in 
these  underlying  minerals  which  the  state  may  grant  to  another 
person.  As  a  result  there  is  no  serious  conflict  between  the  sur- 
face owner  and  the  individual  who  is  entitled  to  work  the  mineral 
deposits  beneath  the  surface.  The  law  of  ownership  of  lands 
acquired  on  the  public  domain  of  the  United  States,  on  the  con- 
trary, only  recognizes  such  severance  to  a  limited  extent. 

Recent  legislation  by  Congress  does  permit  agricultural  entry 
of  lands  valuable  for  coal,  oil,  gas,  phosphates,  nitrates,  potash 
and  other  non-metallic  minerals.42  "Known  lodes"  are  also  ex- 
cepted  from  placers43  and  "known  mines"  from  townsites.44 

The  agricultural  patentee  is  further  safe-guarded  in  this  coun- 
try by  a  statute  of  limitations,  which  provides 

"that  suits  to  vacate  and  annul  patents  thereafter  issued  shall 
only  be  brought  within  six  years  after  the  date  of  issuance 
of  the  patent.45 

Not  only  does  this  statute  of  limitations  operate  to  cut  off  a  min- 
ing claimant's  opportunity  to  acquire  mineral  already  known  to 
exist  in  patented  agricultural  ground  but  rulings  of  the  Supreme 
Court  of  the  United  States  and  of  various  state  courts  have  thrown 
additional  protection  around  agricultural  claimants  so  that  after 
their  bona  fide  entry  on  land  under  non-mineral  public  land  laws 


41  Severance  of  underlying  minerals  from  the  surface  and  their  segre- 
gation into  distinct  titles  is  characteristic  of  the  laws  of   France,   Belgium, 
Holland,    Spain,    Austria,    Germany,    portions    of    Italy,    Greece,    Norway, 
Sweden,  portions  of  Russia,  Canada,  Australia,  Japan,  and  most  of  Spanish 
America. 

42  See  3  California  Law  Review,  p.  288,  n.  45,  in  article  entitled,  "The 
New  Public  Land  Policy." 

4;>  U.  S.  Rev.  Stats.,  §  2333. 

**  U.  S.  Rev.  Stats.,  §  2392. 

45  As  to  patents  theretofore  issued,  the  period  of  limitation  was  five 
years  after  the  passage  of  the  Act.  Act  of  Congress  approved  March  3, 
1891,  26  Stats,  at  L.  1093,  §  8.  See  Lindley  on  Mines,  §  784. 


322  CALIFORNIA  LAW  REVIEW 

has  been  made,  it  is  difficult  for  a  mineral  claimant  to  make  a 
valid  adverse  entry  on  the  same  land.48 

In  other  words,  when  the  United  States  grants  non-mineral 
title  to  land  it  is  usually  in  practical  effect  an  outright  grant  of 
all  that  the  land  contains.  There  is  no  dual  ownership  contem- 
plated except  in  the  few  limited  cases  noted.  Anyone  who  recog- 
nizes these  advantages  which  the  agricultural  claimant  now 
possesses  in  this  country  as  against  those  desiring  to  acquire  the 
mineral  existing  in  the  same  lands,  will  appreciate  to  some  degree, 
at  least,  the  hardship  which  is  going  to  result  to  the  miner  if  the 
extralateral  right  is  abolished  without  the  simultaneous  enact- 
ment of  legislation  designed  to  offset  this  difficulty.  The  in- 
evitable result  of  an  outright  elimination  of  the  extralateral  right 
will  be  to  feed  all  existing  agricultural  patents  which  have  veins 
dipping  beneath  them  with  all  such  extralateral  segments  of  such 
veins  situated  vertically  beneath  these  agricultural  patented  lands, 
since  such  segments  will  fall  by  gravity  into  and  become  merged 
with  the  ownership  of  the  overlying  surface  lands.47 

Some  may  argue  that  this  is  a  desirable  result.  It  is  doubtful 
whether  the  mine  operator  and  prospector  will  enthuse  over  such 
an  outcome.  To  allow  minerals  to  pass  into  agricultural  owner- 
ship is  not  going  to  facilitate  the  extraction  of  minerals  from  the 
soil.  These  two  fundamental  industries  have  many  points  of 
difference.  The  destruction  of  soil  by  actual  removal  thereof  or 
deposit  thereon  of  tailings,  necessary  in  so  many  instances  in 
actual  mining  operations,  and  the  destruction  of  vegetation  result- 
ing from  reduction  and  smelting  processes  has  made  the  average 
agriculturist  apprehensive  and  difficult  to  persuade  that  mining 
in  his  immediate  vicinity  is  always  for  his  best  interests.  Neither 
has  the  agriculturist  any  adequate  conception  of  the  true  value 
of  a  mine  and  is  inclined  to  place  on  the  mineral  existing  within 
his  ground  an  exorbitant  and  exaggerated  price  based  on  gross 
output.  He  does  not  take  into  consideration  the  vicissitudes  of 


*«  See  Lindley  on  Mines,  §§206-208,  77. 

47  While  there  is  a  difference  of  opinion  on  the  subject,  the  weight 
of  reason  and  views  of  the  text  writers  support  the  contention  that  a  miner 
who  locates  the  apex  of  a  vein  within  ground  that  is  open  to  location,  even 
though  his  location  is  made  later  in  time  than  the  date  of  the  patent  to 
agricultural  land  which  overlies  the  dip  of  the  vein,  may  follow  his  vein 
extralaterally  underneath  the  prior  patented  agricultural  surface.  Lindley 
on  Mines,  §612. 


EXTRALATERAL  RIGHTS  323 

mining  operations  and  the  difficulties  which  must  be  overcome 
before  a  mine  can  be  put  on  a  paying  basis.  The  abolition  of 
the  extralateral  right  will  further  fortify  the  farmer  in  this  posi- 
tion and  make  him  increasingly  hard  to  deal  with.  With  the  extra- 
lateral  right  in  existence,  the  agricultural  surface  owner  can  now 
be  usually  induced,  for  a  small  consideration,  to  part  with  any 
claim  he  may  assert  to  underlying  mineral  rights,  for  he  is  aware 
of  the  right  of  the  lawful  apex  proprietor  to  follow  the  vein  and 
penetrate  beneath  his  land  without  his  consent.  It  will  be  quite 
a  different  matter  to  deal  with  him  when  he  realizes  that  he  has 
become  the  actual  and  undisputed  owner  of  the  vein  situated 
vertically  beneath  his  surface. 

THE  EXTRALATERAL  RIGHT  is  BASED  ON  THE  PRINCIPLE  OF 

SEVERANCE. 

The  main  exception  in  the  public  land  law  of  the  United  States 
existing  today  which  takes  the  place  of  severance  in  other  coun- 
tries, is  the  right  of  the  owner  of  a  valid  lode  location  embracing 
the  apex  of  a  vein  to  follow  the  vein  extralaterally  underneath 
adjacent  surface.  In  other  words,  the  extralateral  feature  of 
American  mining  law  operates  to  segregate  mineral  deposits  in 
the  nature  of  lodes  or  veins  from  the  surface  land  overlying  the 
dip  of  such  veins  or  lodes.48  The  practical  result  of  abolishing 
the  right  to  follow  a  vein  extralaterally  and  confining  the  locator 
to  his  vertical  boundaries  and  of  also  abolishing  the  discovery 
requirement  would  be  that  agricultural  claimants  could  readily 
file  on  and  enter  upon  land  overlying  the  dip  of  the  vein.  Under 
our  existing  land  laws  there  is  no  way  to  prevent  such  action 
unless  the  Land  Department  can  be  persuaded  to  withdraw  the 
land  from  agricultural  entry  pending  its  classification  which  would 
be  manifestly  impossible  in  every  instance,  as  well  as  interfering 
with  bona  fide  acquisition  of  agricultural  titles.  With  the  extra- 
lateral  law  in  force,  the  locator  can  locate  a  claim  embracing  the 
apex  of  the  vein  and  make  a  valid  discovery  on  the  portion  of 


48  "The  Act  of  1866  was  in  effect  a  proclamation  severing  veins  and 
lodes  of  the  character  specified  from  the  body  of  the  public  domain.  It 
was  the  announcement  of  a  governmental  policy,  whereby  ledges  within 
the  earth  were  to  be  considered  as  distinct  entities,  and  to  be  dealt  with 
as  such  in  administering  the  public  land  system.  This  policy  has  never 
been  entirely  changed.  In  the  main  it  is  as  much  a  part  of  /he  existing 
system  as  it  was  of  the  one  which  it  succeeded."  Lindley  on  Mines,  §  568. 


324  CALIFORNIA  LAW  REVIEW 

the  vein  which  is  nearest  to  the  surface.  This  serves  to  carve  out 
the  vein  on  its  dip  beneath  agricultural  land  and  it  is  usually 
immaterial  whether  the  agricultural  claimant  acquires  title  to  the 
surface  overlying  the  dip  or  not.  Abolish  the  extralateral  right 
and  it  becomes  difficult  and  in  many  cases  impossible  to  discover 
mineral  within  the  vertical  boundaries  of  claims  overlying  the  dip 
of  the  vein.  Agricultural  claimants  might  be  first  on  the  ground 
and  under  the  land  laws  as  now  interpreted  they  could  prevent 
prospective  locators  'from  coming  on  the  ground  for  the  purpose 
of  making  a  discovery.  As  already  pointed  out,  discoveries  per- 
fected by  sinking  shafts  to  encounter  the  vein  in  depth,  even  if 
made  without  opposition,  become  economically  wasteful  and  un- 
desirable. 

THE  ONLY  LOGICAL  ALTERNATIVE  is  TO  SEVER  MINERALS 
FROM  SURFACE. 

After  giving  this  subject  serious  consideration  for  a  number 
of  years  it  is  the  writer's  deliberate  opinion  that,  if  any  change 
is  to  be  made  in  existing  law  and  if  conditions  are  to  be  im- 
proved rather  than  made  worse,  instead  of  abolishing  the  extra- 
lateral  right  principle,  it  should  be  carried  even  further  by  amend- 
ment of  our  public  land  laws  providing  for  the  severance  from 
surface  lands  of  all  minerals  except  superficial  deposits.  Surface 
lands  could  be  disposed  of  under  existing  laws  providing  for  the 
acquisition  of  agricultural  and  other  non-mineral  titles  except  that 
the  mineral  should  be  permanently  reserved  from  such  surface 
grants.  As  the  law  now  stands,  and  as  has  already  been  noted, 
only  minerals  known  to  exist  at  the  date  of  the  agricultural  grant 
are  reserved  and  even  such  minerals  become  the  property  of  the 
surface  proprietor  by  virtue  of  the  existing  statute  of  limitations 
and  also  the  additional  protection  thrown  by  the  courts  about  a 
surface  proprietor  in  possession. 

By  reserving  minerals  from  agricultural  lands  and  allowing 
the  miner  the  right  of  entry  for  purposes  of  prospecting  under  re- 
strictions with  the  added  requirement  that  the  surface  proprietor 
be  compensated  for  damage,  the  interests  of  both  the  miner  and 
the  agriculturist  would  be  conserved.  In  all  the  important  min- 
ing countries  of  the  world  this  segregation  has  taken  place  and 
this  is  the  reason  why  in  such  countries  the  extralateral  principle 
is  not  essential,  whereas,  in  the  United  States,  without  such  segre- 


EXTRALATERAL  RIGHTS  325 

gation  or  severance  of  minerals  from  the  surface,  the  extralateral 
right  has  a  most  powerful  additional  reason  for  existence.  With 
severance  of  minerals  and  segregation  of  agricultural  and  mineral 
interests,  the  element  of  discovery  also,  now  so  vital  in  the  mining 
law  of  the  United  States,  would  assume  secondary  importance. 
Discovery  instead  of  being  of  prime  importance,  as  of  necessity 
it  must  be  under  existing  law  where  no  segregation  of  minerals 
from  the  surface  exists,  could  be  made  a  secondary  requisite, 
only  required  after  the  mineral  locator  had  plenty  of  time  in 
which  to  make  a  discovery,  taking  into  consideration  the  difficulty 
of  so  doing  in  particular  cases.  If  the  principle  of  severance 
is  incorporated  in  a  revised  public  land  law,  a  vertical  boundary 
system  for  the  acquisition  of  mineral  lands  could  be  simultaneously 
adopted  without  resulting  in  great  hardship  to  the  miner,  for  the 
agricultural  surface  claimant  could  no  longer  claim  the  underlying 
minerals.  The  surface  perimeter  within  which  the  miner  could 
work  should  be  so  adjusted  as  to  give  him  as  much  opportunity 
as  possible  to  mine  in  depth  on  the  vein.  This  would  in  effect 
be  an  adoption  of  the  French  system  of  mining  law.  However,  a 
radical  change  of  this  sort  would  unquestionably  result  in  in- 
creased supervision  of  mining  operations  by  the  Federal  Govern- 
ment and  conversely  a  material  sacrifice  of  individual  control  over 
such  operations.49  It  might  even  result  in  permanent  reservation 
by  the  Federal  Government  of  all  minerals,  both  metalliferous  as 
well  as  non-metalliferous,  and  their  disposition  under  a  leasing 
system.  This  would  be  in  line  with  the  new  public  land  policy 
as  evidenced  by  recent  acts  of  Congress  and  of  the  executive 
branch  of  the  government  which  have  been  upheld  by  the  United 
States  Supreme  Court.50 

Whether  such  segregation  is  at  this  late  day  practical  is  a 
question  that  can  only  be  determined  after  it  has  been  thoroughly 
considered  from  every  standpoint.  As  already  noted,  the  Federal 
Government  has  provided  for  such  severance  in  the  case  of  lands 
containing  coal,  oil,  gas,  phosphate  and  similar  minerals  and  it 
may  be  that  the  experience  derived  from  the  practical  develop- 
ment of  such  lands  will  aid  in  determining  this  serious  problem 
when  applied  to  the  metalliferous  minerals. 

49  This  is  conspicuous  in  the  administration  of  the  French  mining  law. 
4  California  Law  Review,  pp.  373-374. 

50  3  California  Law  Review,  pp.  269-291. 


326  CALIFORNIA  LAW  REVIEW 

The  suggestion  that  severance  of  minerals  from  the  surface 
will  solve  many  of  the  difficulties  standing  in  the  way  of  the  out- 
right abolition  of  the  extralateral  right  is  not  new.  The  logic 
of  the  situation  has  caused  others  to  advocate  the  change.51 

The  severance  of  surface  title  from  the  underground  minerals 
would  also  discourage  speculators  and  blackmailers  who  now 
fraudulently  seek  to  acquire  title  to  surface  lands  under  agricul- 
tural laws  in  order  to  levy  tribute  upon  the  bona  fide  mining 
operator.  There  are  many  problems  that  would  have  to  be  care- 
fully considered  if  such  a  material  change  were  made  in  our 


51  "The  one  great  thing  which  would  do  away  with  all  of  our  troubles 
on  the  discovery  question,  and  also  a  lot  of  other  mining  law  troubles,  is 

the  divorce  of  surface  and  mineral  titles The  use  of  the  surface 

and  the  extraction  of  minerals  do  not,  except  to  a  limited  extent,  naturally 
belong  together,  and  any  law  which  persists  in  keeping  the  two  inseparable 
must  be  full  of  injustice  and  trouble  brooding."  Victor  G.  Hills  in  Trans- 
actions of  American  Institute  of  Mining  Engineers,  (Dec.  1916),  p.  2202. 

An  able  paper  entitled  "The  Segregation  and  Classification  of  the 
Natural  Resources  of  the  Public  Domain,"  by  Frederick  F.  Sharpless  ap- 
pears in  the  Transactions  of  the  American  Institute  of  Mining  Engineers, 
Vol.  XX,  pp.  386-400.  The  author  points  out  the  many  advantages  of 
segregating  the  surface  from  the  mineral  title  and  calls  attention  to  the 
fact  that:  "In  nearly  all  of  the  Provinces  of  Canada,  there  are  three  dis- 
tinct rights  in  every  parcel  of  land — timber  rights,  mineral  rights  and 

agricultural  rights In  Australia,  the  segregation  of  surface  from 

mineral  rights  has  been  the  custom  in  most  of  the  colonies  for  many 

years While  segregation  of  surface  from  mineral  rights  would  not 

cure  all  existing  difficulties  connected  with  our  present  mining  laws,  it 
would,  because  of  the  very  different  nature  of  these  rights,  simplify  the 
application  of  remedies." 

After  the  main  report  of  the  Public  Land  Commission  had  been  sub- 
mitted to  Congress,  Maj.  J.  W.  Powell,  one  of  the  Commission,  qualified 
his  approval  of  the  report  by  adding  a  provision  in  the  case  of  certain 
agricultural  lands  classified  by  the  commission  as  pasturage  lands,  that 
"all  subterranean  mining  property  and  rights  for  mining  purposes,  are 
hereby  severed  from  the  surface  property,"  and  that  in  the  case  of  all 
such  patents  issued,  the  same  reservation  should  be  inserted  and  the 
property  "shall  be  servient  to  the  easements  necessary  for  discovering 
and  working  mines  therein."  He  also  urged  that  in  the  case  of  mineral 
lands  every  patent  should  have  inserted  the  following  clause:  "Except  and 
excluding  from  these  presents  all  surface  property  rights,  provided  that 
there  shall  be  dominant  in  the  property  conveyed  in  this  patent  the  ease- 
ments on  the  surface  property  necessary  for  discovering  and  working 
mines  therein." 

The  Commission  had  recommended  that  lands  more  valuable  for  min- 
eral than  agricultural  purposes  should  be  classified  as  mineral  lands  and 
subject  to  sale  and  entry  only  under  mineral  laws.  Major  Powell  argued 
that  since  one-half  of  the  mineral  lands  in  the  western  United  States  were 
forest  lands  from  which,  under  the  Commission's  recommendation,  the 
timber  alone  was  to  be  sold  to  timber  claimants,  thus  leaving  such  lands 
open  to  mineral  exploration,  and  since  the  other  half  of  the  mineral  lands 
were  largely  pasturage  lands,  that  this  severance  recommended  by  him 
would  quite  thoroughly  protect  the  mining  industry. 


EXTRALATERAL  RIGHTS  327 

mining  law,  but  the  experience  of  other  countries  which  have 
successfully  operated  their  mines  under  laws  based  on  this  prin- 
ciple would  afford  great  assistance  in  framing  such  legislation.52 

The  complex  problem  here  presented  is  surrounded  with  pro- 
found difficulties  and  no  matter  in  which  direction  we  turn,  we 
are  confronted  with  unknown  quantities  and  untried  conditions. 
Any  critic  who  ventures  to  prophesy  with  any  degree  of  assurance 
that,  by  abolishing  the  extralateral  right  and  also  the  time-honored 
principle  of  discovery,  the  millenium  in  mining  operations  will 
be  attained,  has  closed  his  eyes  to  these  uncertainties  and  is  acting 
on  blind  faith.  The  writer  does  not  claim  to  have  received  any 
information  from  an  inspired  source  and  is  free  to  confess  that 
the  more  the  situation  is  studied  the  graver  its  uncertainties  be- 
come. It  will  take  a  master  mind  to  hew  the  way  and  devise 
a  substitute  law  which  will  work  in  harmony  with  our  other  land 
laws  and  which  will  not  bring  chaos  in  its  wake. 

A  commission  composed  of  the  best  talent  available  has  been 
proposed  but  legislation  to  bring  about  this  result  failed  at  the 
last  session  of  Congress.  It  is  certain  that  if  revision  is  desirable 
it  should  not  take  place  piece-meal  and  without  due  consideration 
of  its  effect  on  other  land  laws.53 


52  "An  enlightened  public  sentiment  concerning  our  mineral  land  policies 
can  be  formed  only  in  the  light  that  is  afforded  by  knowledge  of  the  kin- 
dred systems  of  the  progressive  peoples  of  the  earth."     United  States  Sen- 
ator Thomas  J.  Walsh,  Transactions  of  American  Institute  of  Mining  En- 
gineers,  Vol.   XLVIII,   p.   411. 

53  The  provisions  of  the  proposed  Revision  Commission  Bill  were  ex- 
plained  at    length    in    Transactions    of   the    American    Institute    of    Mining 
Engineers,  Vol.  XLVIII,  pp.  405-411.    Unquestionably,  the  plan  there  urged 
of  general   revision  rather  than   "tinkering  or  patchwork  revision"   cannot 
be   successfully   controverted.      Writing   of   the  present  laws,    Edmund    H. 
Kirby  there   says    (p.  406)  :"....  Their  various  parts  are  so  interdepen- 
dent that  it  is   practically  impossible   to   correct   individual   faults   without 
revising  the  laws  as  a  whole." 

There  were  several  bills  introduced  in  the  64th  Congress  having  for 
their  object  the  revision  of  the  mining  law.  One  in  particular  (Senate  42) 
provided  for  an  outright  repeal  of  the  extralateral  right  without  any  at- 
tempt to  revise  other  features  of  the  law  so  as  to  minimize  the  hardships 
that  would  inevitably  result.  The  opinion  of  the  Department  of  the  In- 
terior was  requested  and  Secretary  Lane  on  Jan.  21,  1916,  wrote  the  Chair- 
man of  the  Senate  Committee  on  Public  Lands  as  follows:  "It  is  certainly 
undesirable  to  attempt  revision  by  partial  and  piecemeal  methods.  The 
entire  mining  field  should  be  surveyed  and  the  existing  mining  statutes 
revised  only  after  thorough  examination  in  all  particulars.  This  can  be 
best  accomplished  by  a  commission  such  as  is  contemplated.  In  view  of  the 
probable  creation  of  such  a  commission,  whose  duties  will  include  con- 
sideration of  the  very  matters  included  in  the  present  bill,  Senate  42,  I 
deem  it  inadvisable  to  make  any  comment  upon  the  merits  of  the  proposed 


328  CALIFORNIA  LAW  REVIEW 

The  writer  feels  justified  in  asserting  that  the  following  sum- 
marized statements  are  amply  supported  by  the  facts  presented 
in  the  course  of  this  discussion: 

1.  The   extralateral   right  principle  has   existed   in   one   form 
or  another  in  many  of  the  mining  laws  of  the  world  but  in  nearly 
all   instances  this   feature  has  been   eventually  abolished   because 
of  the  litigation  and  uncertainty  which  it  produced. 

2.  The  extralateral  right  was  adopted  as  a  part  of  the  mining 
law  of  the  West   by   the   pioneer  miners   when   they   made   their 
earliest  quartz  locations  in  1850  and  1851  and  it  became  the  al- 
most universal  custom  and  usage  of  the  miners  throughout  the 
mining  districts  to  exercise  "dip  rights/'54 


measure,  and  would  suggest  that  the  matters  there  involved  be  left  to  the 
careful  study  and  consideration  of  such  commission.  I  accordingly  recom- 
mend at  this  time  that  Senate  42  be  not  enacted." 

54  Dr.  Rossiter  W.  Raymond,  who  was  intimately  associated  with  the  de- 
velopment of  the  mining  law  of  the  public  domain,  has  contributed  many 
learned  and  illuminating  articles  on  the  general  subject  and  particularly  on 
"The  Law  of  the  Apex"  (Transactions  American  Institute  of  Mining  En- 
gineers, Vol.  XII,  p.  387)  which  descriptive  phrase  as  well  as  the  term 
"extralateral,"  he  introduced  into  the  literature  of  American  mining  law. 
He  calls  attention  to  the  fact  that  "the  term  'extralateral'  could  not  have 
been  applied  under  the  Act  of  1866,"  for  the  reason  that  the  locator  was 
entitled  to  a  certain  length  of  vein  without  regard  to  any.  width  of  surface 
ground.  (Transactions  of  American  Institute  of  Mining  Engineers,  Vol. 
XLVIII,  p.  302).  In  other  words,  the  miner's  surface  claim  was  not  re- 
stricted under  the  Act  of  1866  by  lateral  boundaries  and  hence  extralateral 
pursuit  of  the  vein  would  necessarily  be  a  misnomer.  The  "dip  right"  as 
applied  to  this  early  appearance  of  the  right  to  follow  down  indefinitely 
on  the  vein  is  technically  a  more  accurate  use  of  terms.  ("The  'dip  right* 
of  the  early  miner  was  the  forerunner  of  the  modern  extralateral  right." 
Lindley  on  Mines,  §566).  However,  this  differentiation  of  terms  is  more 
or  less  academic,  for  as  a  matter  of  fact,  most  of  the  early  local  rules 
and  customs  of  the  mining  districts  (See  4  California  Law  Review,  pp. 
448,  449,  n.,  p.  47)  and  many  of  the  territorial  legislatures  (See  id.,  pp.  450- 
452)  prescribed  a  definite  lateral  surface  boundary  limitation  for  lode 
claims  and  even  in  those  districts  where  no  such  limitation  was  imposed, 
the  location  and  occupation  of  all  the  available  surface  territory  in  the 
vicinity  of  important  mines  necessarily  resulted  in  a  definite  lateral  surface 
limitation  for  each  lode  claim  and  under  such  circumstances  it  is  not  a 
misuse  of  words  to  apply  the  term  "extralateral"  to  the  right  that  the 
miner  exercised  even  in  the  earliest  days.  The  same  may  be  said  of  the 
use  of  the  phrase  "the  law  of  the  apex."  Dr.  Raymond  points  out  (Trans- 
actions of  American  Institute  of  Mining  and  Engineering,  Vol.  XLVIII, 
p.  302;  also  Vol.  XLIV,  p.  61)  that  the  word  "apex"  first  appeared  in  the 
Act  of  1872.  As  a  matter  of  fact  the  apex  or  upper  terminal  edge  of  the 
vein  was  just  as  essential  and  its  possession  constituted  the  prime  basis 
of  the  miner's  right  to  follow  the  vein  down  on  its  dip  in  the  early  50's 
and  under  the  Act  of  1866  as  under  the  Act  of  1872,  which  expresslj 
called  it  by  name.  All  of  the  extralateral  cases  decided  under  the  Act  of 
1866  bear  out  this  statement. 

No  attempt  has  been  made  in  the   course  of  this   discussion  to  keep 


EXTRALATERAL  RIGHTS  329 

3.  The  legislatures  of  practically  all  of  the  western  states  and 
territories  had  by  statute  declared  the  extralateral  right  to  be  the 
mining  law  in  force  in  their  respective  jurisdictions  when  Congress 
passed  the  Act  of  1866  which  adopted  and  crystallized  this  miner's 
law  without  material  alteration. 

4.  The   Act   of    Congress    of    1872,    which    is    still    in    force, 
further  codified  and  confirmed  this  miner-made  law,  changing  it 
only  in  minor  respects  and  leaving  the  fundamental  principle  of 
extralateral    pursuit    substantially    as    the    miners    had    originally 
adopted  it. 

5.  The  law  of  discovery  is  not  only  handed  down  to  us  by 
the  pioneer  miners  of   the  West  but  is   also  a  heritage  of  cen- 
turies of  mining  experience  throughout  the  world. 

6.  To  abolish  the  extralateral  right  will  result  in  forcing  the 
abolition  of  the  principle  of  discovery  as  applied  to  lode  mines 
as   well,   and   these   are   two   of   the   most   vital    features   of   our 
mining  law. 

7.  With  the   extralateral   right   repealed,    the   only   important 
feature  of  our  law  which  has  the  effect  of  severing  the  under- 
lying mineral  from  the  surface  will  have  been  eliminated  and  with 
the  principle   of   discovery   eradicated,    the   simple    and   practical 
test,  now  thoroughly  understood,  will  no  longer  be  available   to 
the  prospector   and   locator,   and   unless   some   substitute   is    fur- 
nished he  will  find  himself  at  the  mercy  of  the  agricultural  claimant 
or  the  unscrupulous  speculator. 

8.  The  alternative  suggested  of  leaving  classification  of  lands 
to  government  agents  will  shift  the  initiative  in  determining  min- 
eral character  from  the  individual  locator,  as  it  exists  at  present, 
and  will  be  a  long  step  in  the  direction  of  complete  government 
control  of  metalliferous  mining. 

9.  The  logical  solution  based  on  world  experience  is  to  sever 
all  mineral  except  superficial  deposits  from  the  surface  and  dis- 
pose of  the  minerals  and  the  surface  separately. 

10.  Whether  a  workable   system  based   on   this  principle   of 
severance  can  be  devised  at  this  late  day  which  will  not  result 


this  refinement  of  terms  in  mind  for  it  would  serve  no  practical  purpose 
and  would  merely  result  in  confusion.  The  expressions  "extralateral  right," 
"law  of  apex,"  and  "dip  right"  have  been  used  to  convey  the.  same  general 
idea  of  a  right  to  follow  a  certain  length  of  vein  on  its  dip  into  the  earth 
indefinitely. 


330  CALIFORNIA  LAW  REVIEW 

in  producing  greater  confusion  and  more  litigation  by  reason  of 
new  and  untried  problems  and  conflict  with  innumerable  rights 
vested  under  the  former  system,  is  a  question  which  would  tax 
the  wisdom  of  Solomon. 

ii.  In  any  event,  revision,  if  attempted,  must  be  general  and 
not  piecemeal  and  should  be  enacted  only  as  the  result  of  the  most 
careful  deliberation  by  a  commission  composed  of  the  best  talent 
available.55 

Wm.  E.  Colby. 

Berkeley,   California. 


55  On  April  4,  1917,  Senator  Smoot  introduced  in  the  United  States 
Senate  (S.  104)  a  bill  "To  provide  for  a  commission  to  codify  and  suggest 
amendments  to  the  general  mining  laws,"  with  power  "to  hold  public  hear- 
ings in  the  principal  mining  centers  in  the  Western  United  States  and 
Alaska,"  etc.,  and  to  "consider  the  laws  and  experience  of  other  countries 
with  respect  to  disposition  and  development  of  mines  and  minerals"  and 
"within  one  year"  to  submit  to  the  President  a  report  and  "a  tentative  code 
of  mineral  laws." 


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